PEOPLE v. LUIS (2025)

Judgment, Supreme Court, Bronx County (Margaret L. Clancy, J. at hearing;  James McCarty, J. at plea;  Timothy W. Lewis, J. at sentencing), rendered October 19, 2022, convicting defendant of attempted criminal possession of a weapon in the second degree and possession of ammunition, and sentencing him to consecutive jail terms of one year, unanimously affirmed.

Defendant validly waived his right of appeal, which forecloses review of his suppression and Second Amendment claims (see People v. Liriano, 226 A.D.3d 520, 209 N.Y.S.3d 30 [1st Dept. 2024], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 323, 237 N.E.3d 1263 [2024]).  The court's colloquy tracked the model colloquy endorsed by the Court of Appeals in (People v. Thomas, 34 N.Y.3d 545, 567, 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]).  Additionally, defendant executed a written waiver, which he reviewed with counsel, that reiterated the court's explanation of the right of appeal (see People v. Walker, 206 A.D.3d 541, 168 N.Y.S.3d 820 [1st Dept. 2022], lv denied 38 N.Y.3d 1191, 176 N.Y.S.3d 221, 197 N.E.3d 501 [2022]).  Even if the language in the Spanish waiver was translated imperfectly, “imprecise ․ language in appeal waivers” does not “prevent their enforcement, so long as all the relevant facts and circumstances surrounding the waiver ․ reveal[s] that the waivers were knowingly, intelligently and voluntarily entered” (Thomas, 34 N.Y.3d at 559–560, 122 N.Y.S.3d 226, 144 N.E.3d 970).  Accordingly, defendant's valid waiver forecloses review of his suppression and Second Amendment claims.

Regardless of whether defendant validly waived his right to appeal, the court properly denied defendant's motion to suppress the pistol.  The police were entitled to detain defendant because their investigation, prompted by several 911 calls reporting a shooting and crime scene bystanders who directed police to an abandoned house where defendant was detained with two other men, was “a rapidly developing and dangerous situation presenting an imminent threat to their well-being” (People v. Allen, 73 N.Y.2d 378, 380, 540 N.Y.S.2d 971, 538 N.E.2d 323 [1989]).  Thus, to “ensur[e] their safety,” the police were entitled to detain defendant even without “particularized suspicion” (People v. Henderson, 162 A.D.3d 517, 517, 79 N.Y.S.3d 131 [1st Dept. 2018], lv denied 32 N.Y.3d 1111, 91 N.Y.S.3d 363, 115 N.E.3d 635 [2018]).  Additionally, the police did not affect an arrest by handcuffing defendant, patting him down, and asking him to sit on the floor with the two other men (see id.).

In addition to being waived as noted, defendant's claim that New York's ban on handgun possession by individuals under 21 years of age is unpreserved because he failed to raise it in his motion to dismiss the indictment (see 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]), and we decline to review it in the interest of justice.  Furthermore, defendant has not established that the ban 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. Tarazona, 239 A.D.3d 544, 545, 234 N.Y.S.3d 85 [1st Dept. 2025]).