PEOPLE v. DIALLO (2024)

Judgment, Supreme Court, New York County (Cori Weston, J.), rendered November 10, 2023, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to five years probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed at sentencing, and otherwise affirmed.

Defendant's valid waiver of his right to appeal forecloses consideration of his Second Amendment claim premised on New York Rifle & Pistol Assn. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), as well as his claim that the sentence imposed was excessive (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019];  People v. Liriano, 226 A.D.3d 520, 209 N.Y.S.3d 30 [1st Dept. 2024], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 323, 237 N.E.3d 1263 [2024]).  As alternative holdings, we find, with regard to the Second Amendment claim, that defendant's claim is unpreserved (see People v. Cabrera, 41 N.Y.3d 35, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023];  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];  People v. Johnson, 225 A.D.3d 453, 455, 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]), that defense counsel was not ineffective for failing to assert the Bruen-based claim, that defendant lacks standing to assert the Second Amendment challenge (Khan, 225 A.D.3d at 552, 206 N.Y.S.3d 74), and that defendant has failed to establish that his conviction is unconstitutional (id.).  As to the excessive sentence claim, we perceive no basis for reducing defendant's sentence.

Based on our own interest of justice powers, we vacate the mandatory 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.