PEOPLE v. MARTINEZ (2024)

Judgment, Supreme Court, Bronx County (Alvin Yearwood, J.), rendered May 6, 2022, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree under indictment No. 2116/18, and sentencing him, as a second felony offender, to a term of 31/212 to 7 years;  and judgment (same court, George Villegas, J.), rendered November 2, 2022, convicting defendant, upon his plea of guilty, of bail jumping in the second degree under indictment No. 72909/22, and sentencing him to a term of 11/212 to 3 years, to run concurrently with the sentence under indictment No. 2116/18, unanimously affirmed.

Defendant's valid waiver of the right to appeal (see People v. Thomas, 34 N.Y.3d 545, 560, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 586 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]) forecloses review of both his Second Amendment challenge to his conviction and his excessive sentence claim (see People v. Johnson, 225 A.D.3d 453, 454–455, 206 N.Y.S.3d 584 [1st Dept. 2024];  People v. Pasha, 36 A.D.3d 425, 826 N.Y.S.2d 254 [1st Dept. 2007], lv denied 8 N.Y.3d 989, 838 N.Y.S.2d 492, 869 N.E.2d 668 [2007]).  In any event, defendant's Second Amendment claim is unpreserved because it was not raised before the trial court (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 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 his weapon possession conviction (see People v. Khan, 225 A.D.3d 552, 206 N.Y.S.3d 74 [1st Dept. 2024], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 322, 237 N.E.3d 1262 [2024]), or that the 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]).

Defendant's contention that defense counsel was ineffective for failing to move for dismissal of the indictment on Second Amendment grounds “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” (People v. Slade, 228 A.D.3d 439, 439, 211 N.Y.S.3d 362 [1st Dept. 2024]).  To the extent that the issue can be resolved on this record, defendant fails to establish that his counsel was ineffective.  We perceive no basis for reducing defendant's sentence.  To the extent defendant is challenging his bail jumping conviction, it has been abandoned on appeal.