PEOPLE v. COLLINS (2024)

Judgment, Supreme Court, Bronx County (Laurence E. Busching, J.), rendered December 17, 2021, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him five years’ probation, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 NY3d 545 [2019], cert denied 589 U.S. ––––, 140 S Ct 2634 [2020]).  The combination of the court's oral colloquy with defendant, and the written waiver that he signed after consultation with counsel, established that defendant had been adequately apprised of the appellate rights being waived.  The waiver forecloses review of defendant's Second Amendment challenge to his conviction (see People v. Johnson, ––– AD3d ––––, 2024 N.Y. Slip Op 01275 [1st Dept 2024]).

Moreover, defendant's Second Amendment claim is unpreserved (see People v. Cabrera, ––– NY3d ––––, ––––, 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–b(1) or that this statute is unconstitutional in light of New York State Rifle & Pistol Assn., Inc. v Bruen (597 U.S. 1 [2022]) (see Johnson, ––– AD3d ––––, ––––, 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.