PEOPLE v. GULLEY (2025)

Judgment, Supreme Court, Bronx County (Steven J. Hornstein, J.), rendered February 16, 2023, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to five years of probation, unanimously affirmed.

Defendant validly waived his right to appeal.  The totality of the circumstances, including the court's oral colloquy, which sufficiently distinguished the right to appeal from those trial rights automatically forfeited by a guilty plea, fully explained the appellate rights defendant was giving up, and detailed the claims that survived, taken together with the detailed written waiver, established that the waiver was knowing, intelligent, and voluntary (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]).  The waiver forecloses review of defendant's Second Amendment claim premised on 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, 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]).

Even if the appeal waiver were invalid, defendant failed to preserve his Second Amendment claim (People v. Cabrera, 41 N.Y.3d 35, 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023];  Johnson, 225 A.D.3d at 455, 206 N.Y.S.3d 584), and we decline to consider it in the interest of justice.  As an alternative holding, we find that he lacks standing to assert his Second Amendment challenge (see People v. Liriano, 226 A.D.3d 520, 521, 209 N.Y.S.3d 30 [1st Dept. 2024], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 323, 237 N.E.3d 1263 [2024]), and that he failed to establish that his conviction is unconstitutional (id.).

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. 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]).  In any event, “[t]here can be no denial of effective assistance ․ arising from counsel's failure to make a motion or argument that has little or no chance of success” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]).

Defendant's valid waiver of appeal also forecloses review of his excessive sentence claim (see Liriano, 226 A.D.3d 520, 209 N.Y.S.3d 30).  In any event, we perceive no basis for reducing the sentence.