PEOPLE v. TARAZONA (2025)

Judgment, Supreme Court, New York County (Stephen M. Antignani, J.), rendered January 26, 2023, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of two years, unanimously affirmed.

Defendant's Second Amendment claims are unpreserved (see People v. Cabrera, 41 N.Y.3d 35, 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to consider them in the interest of justice.  In any event, defendant lacks standing to assert a Second Amendment challenge to New York's gun-licensing regime because he did not apply for a license (see e.g. People v. Maldonado, 230 A.D.3d 1069, 1070, 217 N.Y.S.3d 81 [1st Dept. 2024], lv denied 42 N.Y.3d 1053, 225 N.Y.S.3d 653, 250 N.E.3d 664 [2024];  see also United States v. Decastro, 682 F.3d 160, 164 [2d Cir. 2012], cert denied 568 U.S. 1092, 133 S.Ct. 838, 184 L.Ed.2d 665 [2013]).  Defendant also lacks standing to challenge New York's age restriction under Penal Law § 400.00(1)(a), which was not struck down by Bruen, since he was under 21 at the time of the instant offense (see Matter of Denim M., 231 A.D.3d 675, 675, 219 N.Y.S.3d 325 [1st Dept. 2024]).  Moreover, his claim that an application would have been futile because he did not meet the minimum age requirement is unpreserved and we decline to review it in the interest of justice (Maldonado, 230 A.D.3d at 1070, 217 N.Y.S.3d 81).  As an alternative holding, we find that defendant has failed 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]).

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. Anderson, 234 A.D.3d 603, 604, 224 N.Y.S.3d 75 [1st Dept. 2025], lv denied 43 N.Y.3d 943, 231 N.Y.S.3d 398, 257 N.E.3d 93 [2025]).  As an alternative holding, we find that counsel was not ineffective (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]).

We perceive no basis for reducing the sentence.