PEOPLE v. MALDONADO (2024)

Judgment, Supreme Court, Bronx County (Naita Semaj, J.), rendered September 28, 2022, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree, and sentencing him to a term of nine months, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the mandatory surcharge and fees imposed at sentencing, and otherwise affirmed.

Defendant's purported waiver of his right to appeal was invalid because the court did not tell defendant that his right to appeal was separate and distinct from his trial rights, which were automatically forfeited upon his plea of guilty (see People v. Thomas, 34 N.Y.3d 545, 561–562, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019];  People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]), and because the written waiver he signed contained language that this Court has repeatedly held to be incompatible with a knowing, intelligent, and voluntary waiver (see People v. Santiago, 119 A.D.3d 484, 990 N.Y.S.2d 494 [1st Dept.2014], lv denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014];  People v. Castro, 223 A.D.3d 20, 22, 202 N.Y.S.3d 66 [1st Dept.2023], lv denied 41 N.Y.3d 964, 208 N.Y.S.3d 528, 232 N.E.3d 206 [2024]).

However, defendant lacked standing to assert a Second Amendment challenge to the state's gun licensing scheme because he did not apply for a license (see People v. Johnson, 225 A.D.3d 453, 206 N.Y.S.3d 584 [1st Dept. 2024];  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]).  Moreover, his claim that an application would have been futile because he did not meet the minimum age requirement (see People v. Velardo, 228 A.D.3d 520, 211 N.Y.S.3d 382 [1st Dept.2024], lv denied 42 N.Y.3d 930, 216 N.Y.S.3d 112, 240 N.E.3d 831 [2024]), is unpreserved (see People v. Cabrera, 41 N.Y.3d 35, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to review it in the interest of justice.  As an alternative holding, we find that on the present record, defendant has failed to establish that the fourth-degree weapon possession 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).

Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing (see People v. Chirinos, 190 A.D.3d 434, 435, 135 N.Y.S.3d 641 [1st Dept. 2021]).  We note that the People do not oppose this relief.