PEOPLE v. WATTS (2025)

Judgment, Supreme Court, Bronx County (Guy H. Mitchell, J.), rendered January 13, 2023, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a jail term of 364 days;  and judgment of resentence, same court and Justice, rendered December 8, 2023, sentencing defendant to the same term but running the sentence concurrently with a sentence imposed under a Kings County indictment, unanimously affirmed.

Defendant's waiver of his right to appeal was not knowing, intelligent, and voluntary.  The court failed to provide an explanation of the “nature of the waiver, the rights the defendant would be waiving, or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty” (People v. Ramos, 122 A.D.3d 462, 464, 997 N.Y.S.2d 24 [1st Dept. 2014]).  Counsel's representations that defendant understood the written waiver were insufficient to satisfy the court's obligation to explain the waiver to defendant or to clarify that the waiver was separate and distinct from his guilty plea (see People v. Oquendo, 105 A.D.3d 447, 448, 963 N.Y.S.2d 71 [1st Dept. 2013], lv denied 21 N.Y.3d 1007, 971 N.Y.S.2d 259, 993 N.E.2d 1282 [2013]).

Defendant lacks standing to raise his Second Amendment claims because he did not apply for a gun license (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]).  On the merits, he fails to establish 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. Johnson, 225 A.D.3d at 455, 206 N.Y.S.3d 584).

To the extent that defendant challenges other requirements listed in Penal Law § 400.00(1), such as the “good moral character” provision in section 400.00(1)(b), his arguments are unpreserved because he failed to raise them in his motion to dismiss the indictment (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 them in the interest of justice.  As an alternative holding, we find them unavailing.

Defendant also failed to preserve any challenge to the constitutionality of the indictment based on the charge of Penal Law § 265.02(8), which prohibits the possession of large capacity ammunition feeding devices (see People v. Archibald, 225 A.D.3d 548, 549, 207 N.Y.S.3d 487 [1st Dept. 2024], lv denied 41 N.Y.3d 1016, 214 N.Y.S.3d 312, 313, 237 N.E.3d 1252, 1253 [2024]), and we decline to review it in the interest of justice.  In any event, this challenge is moot because defendant was not convicted of that count (see id.;  People v. Ruiz, 146 A.D.3d 417, 417, 43 N.Y.S.3d 743 [1st Dept. 2017], lv denied 28 N.Y.3d 1188, 52 N.Y.S.3d 714, 75 N.E.3d 106 [2017]).