PEOPLE v. KIRLEW (2024)

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered June 9, 2022, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of two years followed by two years of postrelease supervision, unanimously affirmed.

Defendant knowingly, intelligently and voluntarily waived his right to appeal.  The written waiver of the right to appeal, which counsel reviewed with defendant, was executed at the beginning of the proceeding.  It is not dispositive that the court conducted its oral colloquy only after defendant's allocution (see e.g. People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016];  People v. Nunez, 220 A.D.3d 597, 598, 197 N.Y.S.3d 61 [1st Dept. 2023], lv denied 41 N.Y.3d 1004, 213 N.Y.S.3d 222, 236 N.E.3d 1240 [2024]).  Defendant's valid waiver of his right to appeal forecloses review of his Second Amendment claim (see People v. Johnson, 225 A.D.3d 453, 453–454, 206 N.Y.S.3d 584 [1st Dept. 2024], lv granted 42 N.Y.3d 939, 217 N.Y.S.3d 895, 242 N.E.3d 680 [2024]).

Moreover, defendant did not preserve his claim that Penal Law § 265.03(3) is unconstitutional in light of the Supreme Court's decision in 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. Cabrera, 41 N.Y.3d 35, 42, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023];  People v. Adames, 216 A.D.3d 519, 519, 188 N.Y.S.3d 479 [1st Dept. 2023], lv denied 40 N.Y.3d 949, 195 N.Y.S.3d 666, 217 N.E.3d 686 [2023]), and we decline to review his claim in the interest of justice.

As an alternative holding, we find that on the present record, defendant lacked standing to challenge New York's gun licensing scheme because he did not apply for a gun license (see Johnson, 225 A.D.3d at 455, 206 N.Y.S.3d 584;  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]).  He also has failed to establish that his conviction is unconstitutional under Bruen (see People v. DeLarosa, 219 A.D.3d 1230, 195 N.Y.S.3d 466 [1st Dept. 2023], lv denied 40 N.Y.3d 1080, 202 N.Y.S.3d 757, 225 N.E.3d 876 [2023];  Adames, 216 A.D.3d at 520, 188 N.Y.S.3d 479).

Defendant's valid waiver of his right to appeal also forecloses review of his excessive sentence claim (People v. Jackson, 225 A.D.3d 547, 548, 207 N.Y.S.3d 484 [1st Dept. 2024], lv denied 41 N.Y.3d 1002, 213 N.Y.S.3d 243, 236 N.E.3d 1261 [2024]).  In any event, we perceive no basis for reducing the sentence.