PEOPLE v. FOFANA (2025)

Judgment, Supreme Court, Bronx County (Alberto Lorenzo, J.), rendered May 5, 2023, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him to a term of probation of five years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of granting defendant's application for a certificate of relief from disabilities, and otherwise affirmed.

Defendant's waiver of his right to appeal was valid (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 challenge (see People v. Rivera, 233 A.D.3d 548, 222 N.Y.S.3d 66 [1st Dept. 2024];  People v. Johnson, 225 A.D.3d 453, 453–454, 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]).  In any event, his claim is partially unpreserved (see People v. Cabrera, 41 N.Y.3d 35, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to review it in the interest of justice.  As an alternative holding, we find that defendant has failed to establish that he has standing to challenge Penal Law § 265.01(1)-b(1), or that the 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 at 455, 206 N.Y.S.3d 584;  People v. Jackson, 225 A.D.3d 547, 548, 207 N.Y.S.3d 484 [1st Dept. 2024], lv denied 41 N.Y.3d 1002, 213 N.Y.S.3d 243, 236 N.E.3d 1261 [2024]).

Defendant's valid waiver of the right to appeal also forecloses review of his excessive sentence claim (see People v. Johnson, 225 A.D.3d at 455, 206 N.Y.S.3d 584).  As an alternate holding, we perceive no basis for reducing defendant's sentence.