PEOPLE v. SLADE (2024)

Judgment, Supreme Court, Bronx County (Tara A. Collins, J., at motion to controvert search warrant;  Timothy Lewis, J., at plea;  Steven J. Hornstein, J., at sentencing), rendered March 15, 2023, convicting defendant of criminal possession of a firearm, and sentencing him to five 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]), which forecloses review of his Second Amendment claim (see People v. Johnson, 225 A.D.3d 453, 206 N.Y.S.3d 584 [1st Dept. 2024]).

Regardless of whether defendant validly waived his right to appeal, defendant's claim is unpreserved (see People v. Cabrera, 41 N.Y.3d 35, 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [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 not demonstrated that he has standing to challenge Penal Law § 265.01–b(1), or that this 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, 225 A.D.3d at 455, 206 N.Y.S.3d 584;  see also People v. Khan, 225 A.D.3d 552, 553, 206 N.Y.S.3d 74 [1st Dept. 2024];  People v. Jackson, 225 A.D.3d 547, 548, 207 N.Y.S.3d 484 [1st Dept. 2024]).

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]).

Defendant's valid waiver of his right to appeal also forecloses review of his suppression and excessive sentence claims (see People v. Jones, 177 A.D.3d 566, 567, 110 N.Y.S.3d 852 [1st Dept. 2019], lv denied 34 N.Y.3d 1129, 118 N.Y.S.3d 549, 141 N.E.3d 505 [2020]).  In any event, based on our in camera review of the unredacted search warrant application and the transcript of the testimony before the issuing court, we find that there was probable cause to issue the warrant, which was not based on stale information and sufficiently described the place to be searched and the items to be seized with particularity.  We perceive no basis for reducing the sentence.