PEOPLE v. CABRERA (2025)

Judgment, Supreme Court, Bronx County (Naita A. Semaj, J.), rendered December 7, 2022, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him to a jail term of six months, with five years of probation, unanimously affirmed.

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 (see e.g. 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]).  In any event, we perceive no basis for reducing the sentence.

Defendant's valid waiver of his right to appeal likewise forecloses review of his Second Amendment challenge (see People v. Johnson, 225 A.D.3d 453, 543, 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 unpreserved, and we decline to review it in the interest of justice (see People v. Cabrera, 41 N.Y.3d 35, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]).  As an alternative holding, we find that on the present record, defendant has failed to establish that he has standing to challenge Penal Law § 265.01–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 e.g. People v. Khan, 225 A.D.3d 552, 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];  Jackson, 225 A.D.3d at 548, 207 N.Y.S.3d 484;  Johnson, 225 A.D.3d at 453, 455, 206 N.Y.S.3d 584).

Defendant's contention that his counsel rendered ineffective assistance in failing to raise his Second Amendment challenge 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. Gomez, 186 A.D.3d 422, 423–424, 129 N.Y.S.3d 60 [1st Dept. 2020];  see also Khan, 225 A.D.3d at 552–553, 206 N.Y.S.3d 74).  In any event, an attorney is not ineffective for failing to pursue a course of action 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]).