PEOPLE v. GRAY (2024)

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered March 24, 2023, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal.  The record establishes that the waiver was knowing, intelligent, and voluntary under the totality of the circumstances (see People v. Thomas, 34 N.Y.3d 545, 559–560, 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]).

Defendant's waiver of his right to appeal 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 validity 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 not demonstrated that he has standing to challenge New York's gun licensing scheme, or that his conviction 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 People v. Castillo, 226 A.D.3d 573, 575, 207 N.Y.S.3d 525 [1st Dept. 2024], lv denied 41 N.Y.3d 1017, 214 N.Y.S.3d 306, 237 N.E.3d 1246 [2024];  Johnson, 225 A.D.3d at 455, 206 N.Y.S.3d 584).

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal, as it involves matters not reflected in the record, and 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 valid waiver of his right to appeal also forecloses review of his excessive sentence claim.  In any event, we perceive no basis for reducing the sentence.