PEOPLE v. RIVERA (2024)

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered October 6, 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 90 days, unanimously affirmed.

Defendant validly waived rights to appeal (see People v. Thomas, 34 N.Y.3d 545, 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]), which forecloses review of his Second Amendment challenge (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];  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, his claim 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 defendant has failed to establish that he has standing to challenge Penal Law § 265.01(1), 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) (see People v. Johnson, 225 A.D.3d at 455, 206 N.Y.S.3d 584;  People v. Jackson, 225 A.D.3d at 548, 207 N.Y.S.3d 484).

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim 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 (see People v. Gomez, 186 A.D.3d 422, 423–424, 129 N.Y.S.3d 60 [1st Dept. 2020]).  As an alternative holding, we find that counsel was not ineffective for failing to raise a Bruen-based claim (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] [an attorney cannot be deemed ineffective for failing to pursue a course of action that has “little or no chance of success”];  People v. Diallo, ––– A.D.3d ––––, 220 N.Y.S.3d 288 [1st Dept. 2024]).