To what extent can the First Amendment be considered by this Court?

To suggest, as the majority has done, that the First Amendment issues herein should not be considered by this court is an antinome. Notably, the majority fails to cite any case in which an appellate court held that it was barred from reviewing fundamental constitutional issues as abandoned. Notably, the cases cited by the majority highlight that it lies within the discretion of this court to choose to deem an argument as abandoned if not pursued on appeal. Stated otherwise, neither the legislature nor the common law mandate that this court deem an argument as abandoned (see e.g., People v. Alexander, 19 N.Y.3d 203, 211, 947 N.Y.S.2d 386, 970 N.E.2d 409 [2012] ["[A] properly interposed constitutional claim may be deemed abandoned or waived if not pursued" (emphasis added) ] ).²

[66 N.Y.S.3d 766]

Even assuming, arguendo, that the defendant abandoned her First Amendment arguments on

[58 Misc.3d 38]