PEOPLE v. CRUZ (2025)

Judgment, Supreme Court, Bronx County (Raymond L. Bruce, J.), rendered May 2, 2023, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.

Defendant did not validly waive his right to appeal.  Even considered in light of the written waiver, the record does not establish that defendant had a “full appreciation of the consequences” of the waiver (People v. Thomas, 34 N.Y.3d 545, 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]).  The court stated to defendant that he would not be allowed to raise any arguments on appeal from his conviction, and the court did not make clear “that some issues are nonwaivable” (People v. Cisse, 228 A.D.3d 440, 441, 212 N.Y.S.3d 606 [2024];  see also People v. Shanks, 37 N.Y.3d 244, 253, 154 N.Y.S.3d 646, 176 N.E.3d 682 [2021]).

However, defendant's Second Amendment claim is unpreserved because it was not raised before the trial court (see People v. Cabrera, 41 N.Y.3d 35, 42, 50–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to consider it in the interest of justice.  As an alternative holding, we find that defendant has not demonstrated that he has standing to challenge New York's gun licensing scheme, or that the criminal possession of a firearm 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 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]).

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 on direct appeal, in the absence of a CPL 440.10 motion (see People v. Gray, 230 A.D.3d 1039, 1039, 217 N.Y.S.3d 59 [1st Dept. 2024]).  To the extent that the issue can be reviewed on this record, defendant fails to establish that his counsel was ineffective (see People v. Stone, 231 A.D.3d 585, 218 N.Y.S.3d 347 [1st Dept 2024]).

We perceive no basis for reducing the sentence.