PEOPLE v. SANCHEZ (2024)

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered September 13, 2022, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree, and sentencing him to three years’ 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]).  The court adequately explained defendant's appellate rights without conflating them with those automatically forfeited upon his guilty plea (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]).  The waiver forecloses review of defendant's Second Amendment challenge to his conviction (see People v. Johnson, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 N.Y. Slip Op. 01275 [1st Dept. 2024]).

Regardless of whether defendant validly waived his right to appeal, his Second Amendment claim is unpreserved (see People v. Cabrera, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2023 N.Y. Slip Op. 05968, *2–7 [2023]), and we decline to consider it 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(1) or that this statute is unconstitutional in light of (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, ––– A.D.3d ––––, ––––, ––– N.Y.S.3d ––––, 2024 N.Y. Slip Op 01275, *3).

Defendant's valid appeal waiver also forecloses review of his excessive sentence claim.  In any event, we perceive no basis for reducing the sentence.