PEOPLE v. RIVERA (2025)

Judgment, Supreme Court, Bronx County (Beth Beller, J.), rendered April 19, 2022, convicting defendant, upon his plea of guilty, of attempted criminal possession of a firearm, and sentencing him to three years of probation, unanimously affirmed.

Defendant's challenges to the voluntariness of his plea are unpreserved and we decline to review them in the interest of justice.  As an alternative holding, we find no basis for reversal.  Nothing that was a “part of the actual [plea] proceeding,” including the statements made by the prosecutor (People v. Dupree, ––– A.D.3d ––––, ––––, 224 N.Y.S.3d 399, 403 [1st Dept. 2025]), “clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea” (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]).  The prosecutor stated, and defendant did not dispute, that the video evidence showed defendant “point[ing] a gun at” a group of “unarmed” people.  Thus, “[t]he remark that defendant claims to have warranted further inquiry did not raise a justification defense, because there was no suggestion that defendant was defending [himself] from the ․ imminent use of force” (People v. Brown, 215 A.D.3d 574, 574, 187 N.Y.S.3d 225 [1st Dept. 2023], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 667, 217 N.E.3d 688 [2023]).  Although defendant argues that he took possession of the gun to defend himself, as demonstrated by the fact that he was shot later that day, “the law is clear that defendant may not avoid the criminal possession charge by claiming that he possessed the weapon for his protection” (People v. Williams, 36 N.Y.3d 156, 163, 139 N.Y.S.3d 594, 163 N.E.3d 462 [2020] [internal quotation mark and brackets omitted]).  Accordingly, no further inquiry by the court was necessary.

Defendant also did not preserve his claim that the court misstated the law when it remarked that “there is no self[-]defense to possessing a weapon,” and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits (see People v. Castillo, 42 N.Y.3d 628, 632, 225 N.Y.S.3d 639, 250 N.E.3d 650 [2024] [“[j]ustification is not available as a defense to a possessory offense, including possession of a weapon with intent to use it unlawfully against another person”]).

Defendant made a valid waiver of his right to appeal (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 excessive sentence claim.  The combination of the court's oral colloquy and the detailed written waiver that defendant signed after consultation with counsel satisfied the requirements of a valid waiver.  It is not dispositive that the court's oral colloquy and the execution of the written waiver occurred after defendant's allocution (see e.g. People v. Kirlew, 231 A.D.3d 678, 678, 219 N.Y.S.3d 658 [1st Dept. 2024], lv denied 42 N.Y.3d 1053, 225 N.Y.S.3d 661, 250 N.E.3d 672 [2024]).  In any event, we perceive no basis for reducing the sentence.

Defendant's valid waiver of his right to appeal also forecloses review of his claim that his weapon possession 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 453, 206 N.Y.S.3d 584 [1st Dept. 2024]).  In any event, the issue is unpreserved (see People v. Cabrera, 41 N.Y.3d 35, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023];  People v. Khan, 225 A.D.3d 552, 206 N.Y.S.3d 74 [1st Dept. 2024], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 322, 237 N.E.3d 1262 [2024]) and we decline to consider it in the interest of justice.