PEOPLE v. JOHNSON (2025)

Judgment, Supreme Court, Bronx County (Brenda Rivera, J.), rendered May 28, 2024, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree, and sentencing him to a one-year conditional discharge, unanimously affirmed.

Defendant has not preserved his Second Amendment challenge to his gun possession conviction because he did not raise it before the trial court (see People v. Cabrera, 41 N.Y.3d 35, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to consider it in the interest of justice.  On the merits, 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]).

Defendant also failed to preserve any challenge to the constitutionality of the indictment based on the charge of Penal Law § 265.02(8), which prohibits the possession of large-capacity ammunition feeding devices (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, 313, 237 N.E.3d 1252, 1253 [2024]), and we decline to review it in the interest of justice.  In any event, his challenge is moot because defendant was not convicted of that count (see People v. Watts, 234 A.D.3d 620, 621, 226 N.Y.S.3d 65 [1st Dept. 2025], lv denied 43 N.Y.3d 1059, 239 N.Y.S.3d 101, 265 N.E.3d 1118 [2025]), and is also unavailing (see People v. Guity, 223 A.D.3d 598, 599, 204 N.Y.S.3d 43 [1st Dept. 2024], lv denied 41 N.Y.3d 1002, 213 N.Y.S.3d 240, 236 N.E.3d 1258 [2024]).

Defendant's claim that defense counsel was ineffective for failing to move for dismissal of the indictment on Second Amendment grounds “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” (People v. Martinez, 231 A.D.3d 448, 449, 217 N.Y.S.3d 553 [1st Dept. 2024], lv denied 42 N.Y.3d 1081, 227 N.Y.S.3d 575, 252 N.E.3d 514 [2025];  People v. Slade, 228 A.D.3d 439, 211 N.Y.S.3d 362 [1st Dept. 2024], lv denied 42 N.Y.3d 940, 217 N.Y.S.3d 887, 242 N.E.3d 673 [2024]).  To the extent that the issue can be resolved on this record, defendant fails to establish that his counsel was ineffective.