PEOPLE v. MERRICK (2025)

Judgment, Supreme Court, Bronx County (Steven J. Hornstein, J.), rendered July 6, 2023, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him to a prison term of three and one-half years to be followed by four years of postrelease supervision, unanimously affirmed.

Defendant validly waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 559–560, 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]), thus foreclosing review of his claim that the postrelease supervision portion of his sentence is excessive (see People v. Castillo, 226 A.D.3d 573, 574, 207 N.Y.S.3d 525 [1st Dept. 2024], lv denied 41 N.Y.3d 1017, 214 N.Y.S.3d 306, 237 N.E.3d 1246 [2024];  People v. Orenstein, 230 A.D.3d 1068, 1069, 219 N.Y.S.3d 30 [1st Dept. 2024]).  In any event, we perceive no basis to reduce the term of postrelease supervision (see People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 [1992];  Castillo, 226 A.D.3d at 575, 207 N.Y.S.3d 525).

Defendant's Second Amendment challenge to the statute to which he pleaded guilty (Penal Law § 265.03[3]), as well as to the other statutes under which he was charged, is likewise waived, and at any rate requires preservation (see People v. Cabrera, 41 N.Y.3d 35, 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023];  People v. David, 41 N.Y.3d 90, 96, 207 N.Y.S.3d 456, 231 N.E.3d 402 [2023];  see also People v. Stewart, 226 A.D.3d 624, 625, 209 N.Y.S.3d 391 [1st Dept. 2024], lv denied 41 N.Y.3d 1021, 214 N.Y.S.3d 306, 237 N.E.3d 1246 [2024]).  We decline to review the issue in the interest of justice.

As an alternative holding, we find that with respect to three of the four statutes he seeks to challenge — Penal Law §§ 265.01(1), 265.01–b(1), and 265.03(3) — defendant does not have standing to challenge New York's gun licensing scheme because he did not apply for a gun license (see Castillo, 226 A.D.3d at 574, 207 N.Y.S.3d 525;  see also People v. Gray, 230 A.D.3d 1039, 1039, 217 N.Y.S.3d 59 [1st Dept. 2024];  People v. Khan, 225 A.D.3d 552, 552, 206 N.Y.S.3d 74 [1st Dept. 2024]).  In any event, defendant has not demonstrated that his conviction 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. DeLarosa, 219 A.D.3d 1230, 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];  People v. Adames, 216 A.D.3d 519, 520, 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]).  Although defendant does have standing to challenge Penal Law § 265.02(8), under which “large capacity ammunition feeding devices are subject to a complete ban, rather than a licensing scheme” (People v. Archibald, 225 A.D.3d 548, 549, 207 N.Y.S.3d 487 [1st Dept. 2024]), that challenge is nevertheless foreclosed by the appeal waiver and the lack of preservation (see Stewart, 226 A.D.3d at 625, 209 N.Y.S.3d 391).

Defendant's contention that 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 therefore must be raised in a CPL 440.10 motion (see People v. Slade, 228 A.D.3d 439, 439, 211 N.Y.S.3d 362 [1st Dept. 2024], lv denied 42 N.Y.3d 940, 217 N.Y.S.3d 887, 242 N.E.3d 673 [2024]).