PEOPLE v. ROSARIO (2025)

Judgment, Supreme Court, Bronx County (Joseph A. McCormack, J., at speedy trial motion;  Naita A. Semaj, J., at Second Amendment motion;  Albert Lorenzo, J., at plea and sentencing), rendered January 6, 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 five years of probation, unanimously affirmed.

Defendant validly waived his right of appeal (see People v. Nunez, 220 A.D.3d 597, 197 N.Y.S.3d 61 [1st Dept. 2023], lv denied 41 N.Y.3d 1004, 213 N.Y.S.3d 222, 236 N.E.3d 1240 [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]).  Defendant acknowledged that he signed the waiver after speaking with his attorney, and counsel acknowledged reviewing the waiver with defendant (see People v. Colon, 190 A.D.3d 563, 136 N.Y.S.3d 707 [1st Dept. 2021], lv denied 37 N.Y.3d 955, 147 N.Y.S.3d 536, 170 N.E.3d 410 [2021]).  The language in the colloquy and the written waiver did not suggest that defendant waived his right to appellate counsel (see Thomas, 34 N.Y.3d at 559–560, 122 N.Y.S.3d 226, 144 N.E.3d 970).

Defendant's valid appeal waiver forecloses review of his speedy trial and Second Amendment claims, and we decline to reach them as a matter of discretion in the interest of justice.  As an alternative holding to his Second Amendment challenge, defendant lacked standing by failing to apply for a license and, further, failed to establish that his conviction is unconstitutional (see e.g. People v. Khan, 225 A.D.3d 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];  People v. Jackson, 225 A.D.3d 547, 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]; People v. Johnson, 225 A.D.3d 453, 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]).