PEOPLE v. ACOSTA (2025)

Judgment, Supreme Court, Bronx County (Steven Hornstein, J. on motion to dismiss;  Audrey Stone, J. at plea and sentencing), rendered November 17, 2023, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him to five years of probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed on defendant at sentencing, and otherwise affirmed.

Defendant's valid waiver of his right to appeal 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, 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]).

As an alternative holding, 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 People v. Johnson, 225 A.D.3d at 455, 206 N.Y.S.3d 584 [1st Dept. 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's conclusory assertion that an application would have been futile because he did not meet the minimum age requirement under Penal Law § 400.00(1)(a) fails to constitute a “substantial showing of futility” (Antonyuk v. James, 120 F.4th 941, 978–979 [2d Cir. 2024], cert denied ––– U.S. ––––, 145 S.Ct. 1900, 221 L.Ed.2d 646 [2025]) sufficient to excuse the “threshold requirement for standing” (Jackson–Bey v. Hanslmaier, 115 F.3d 1091, 1096 [2d Cir. 1997]) since applicants may be exempted from the age restriction under certain conditions (see Penal Law § 400.00[1][a]).  Moreover, we find that defendant has failed to establish that his conviction is unconstitutional under (Bruen, 597 U.S. 1, 142 S.Ct. 2111).

In addition to the bar of the appeal waiver, defendant's arguments that it would have been futile to seek a license for a large capacity ammunition feeding device are unpreserved (see People v. Archibald, 225 A.D.3d 548, 549, 207 N.Y.S.3d 487 [1st Dept. 2024], lv denied 41 N.Y.3d 1016, 214 N.Y.S.3d 312, 237 N.E.3d 1252 [2024]) and moot (see People v. Watts, 234 A.D.3d 620, 621, 226 N.Y.S.3d 65 [1st Dept. 2025]).  Nor has defendant established that the ban on large capacity ammunition feeding devices is unconstitutional under Bruen (see e.g. Archibald, 225 A.D.3d at 549, 207 N.Y.S.3d 487).

Defendant's valid waiver of his right to appeal also forecloses review of his excessive sentence claim.  In any event, we perceive no basis for reducing the sentence. However, based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing (see People v. Chirinos, 190 A.D.3d 434, 435, 135 N.Y.S.3d 641 [1st Dept. 2021]).  We note that the People do not oppose this relief.