PEOPLE v. VELARDO (2024)

Judgment, Supreme Court, Bronx County (Naita A. Semaj, J.), rendered January 5, 2023, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree, and sentencing him to two 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 the waiver, defendant's claim is also 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 standing to challenge his conviction notwithstanding his failure to apply for a gun license because his submission of an application for a license would have been futile, given that assault weapons are subject to a complete ban (see People v. Archibald, 225 A.D.3d 548, 549, 207 N.Y.S.3d 487 [1st Dept. 2024];  see also United States v. Decastro, 682 F.3d 160, 164 [2d Cir. 2012], cert denied 568 U.S. 1092, 133 S.Ct. 838, 184 L.Ed.2d 665 [2013]).  Nevertheless, defendant has not established that the ban 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 Archibald, 225 A.D.3d at 549, 207 N.Y.S.3d 487;  People v. Guity, 223 A.D.3d 598, 599, 204 N.Y.S.3d 43 [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. Holder, 224 A.D.3d 513, 514, 203 N.Y.S.3d 331 [1st Dept. 2024]).

Defendant's challenge to the condition of his probation requiring that he consent to searches of his person, vehicle, and place of abode by a probation officer for weapons and other contraband survives the appeal waiver (see People v. Arias, 210 A.D.3d 593, 594, 179 N.Y.S.3d 47 [1st Dept. 2022], lv denied 39 N.Y.3d 1109, 186 N.Y.S.3d 844, 208 N.E.3d 72 [2023]).  Nevertheless, given that defendant was in possession of a weapon and ammunition during the underlying offense and was assessed by the Department of Probation as being in need of substance abuse treatment, the imposition of the condition was “reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so” (Penal Law § 65.10[1];  see People v. Hale, 93 N.Y.2d 454, 461, 692 N.Y.S.2d 649, 714 N.E.2d 861 [1999]).

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