PEOPLE v. KHAN (2024)

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered November 3, 2022, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him to a term of five years of probation, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]), which forecloses review of his excessive sentence claim.  In any event, we perceive no basis for reducing the sentence.

Defendant's Second Amendment claim is likewise waived (see People v. Omar Johnson, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 N.Y. Slip Op. 01275 [1st Dept. 2024]), and, in any case, requires preservation (see People v. Cabrera, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, 2023 N.Y. Slip Op. 05968 [2023]).  We decline to review the claim in the interest of justice.  As an alternative holding, we find that on the present record, defendant has failed to establish that he has standing to challenge Penal Law § 265–01(b)(1), or that the statute is unconstitutional under New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022) (see Johnson, 2024 N.Y. Slip Op. 01275, ––– A.D.3d ––––, ––– N.Y.S.3d ––––).

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion (see People v. Gomez, 186 A.D.3d 422, 423–424, 129 N.Y.S.3d 60 [1st Dept. 2020]).