PEOPLE v. DEJESUS (2024)

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered April 28, 2023, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree, and sentencing him to three years of probation, unanimously affirmed.

Defendant validly waived his right 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 claim (see People v. Johnson, 225 A.D.3d 453, 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]).  Regardless of the waiver, defendant's claim is unpreserved (see People v. Cabrera, 41 N.Y.3d 35, 42, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to review it in the interest of justice.  In any event, defendant lacks standing to raise his Second Amendment claim because he did not apply for a gun license (see People v. Johnson, 225 A.D.3d at 454–455, 206 N.Y.S.3d 584).  As an alternative holding, we reject his Second Amendment claim on the merits (see id. at 455, 206 N.Y.S.3d 584).

Additionally, defendant's claim that his counsel was ineffective for failing to move to dismiss 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 (see People v. Holder, 224 A.D.3d 513, 514, 203 N.Y.S.3d 331 [1st Dept. 2024], lv denied 41 N.Y.3d 1018, 214 N.Y.S.3d 305, 237 N.E.3d 1244 [2024]).