PEOPLE v. TARAZONA (2025)

Judgment, Supreme Court, Bronx County (Steven J. Hornstein, J.), rendered January 31, 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 purported waiver of his right to appeal was invalid because the written waiver he signed contained language that this Court has repeatedly held to be incompatible with a knowing, intelligent waiver (see People v. Santiago, 119 A.D.3d 484, 485–486, 990 N.Y.S.2d 494 [1st Dept. 2014], lv denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014];  see also People v. Maldonado, 230 A.D.3d 1069, 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]).  Moreover, the court's oral colloquy, while thorough, did not specifically address the infirm language in the written waiver.

Defendant had standing to assert a Second Amendment challenge to the state's gun licensing scheme, even though he did not apply for a license, where an application would have been futile because he did not meet the minimum age requirement (see People v. Velardo, 228 A.D.3d 520, 520, 211 N.Y.S.3d 382 [1st Dept. 2024], lv denied 42 N.Y.3d 930, 216 N.Y.S.3d 112, 240 N.E.3d 831 [2024]).  However, we find that on the present record, 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] (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];  People v. DeLarosa, 219 A.D.3d 1230, 195 N.Y.S.3d 466 [1st Dept. 2023], lv denied 40 N.Y.3d 1080, 202 N.Y.S.3d 757, 225 N.E.3d 876 [2023]).

We perceive no basis for reducing the sentence.