PEOPLE v. ROSAVONG (2026)

Judgment, Supreme Court, Bronx County (Steven Hornstein, J. on motion to dismiss;  Tara A. Collins, J. at plea and sentencing), rendered August 1, 2024, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree, and sentencing him to three years of probation, unanimously modified, on the law and as a matter of discretion in the interest of justice, to the extent of striking the condition of probation requiring him to pay a surcharge and fees, and otherwise affirmed.

Defendant validly waived 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 People v. Nunez, 220 A.D.3d 597, 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]).  As an alternative holding, we perceive no basis for reducing the sentence.

Defendant's valid waiver does not foreclose from review his Second Amendment claim, and he has standing to raise his challenge to the constitutionality of New York's firearm licensing scheme, notwithstanding that he never applied to obtain a firearm license (see People v. Johnson, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *2 [2025]).  However, defendant has failed to establish that the instant indictment 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. Johnson, ––– N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, at *2).

To the extent that defendant challenges New York's “good moral character” provision (Penal Law § 400.00[1][b]), his arguments are unpreserved because he failed to raise them in his motion to dismiss the indictment (see People v. Cabrera, 41 N.Y.3d 35, 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to entertain them in the interest of justice.  As an alternative holding, we find them unavailing (see generally Antonyuk v. James, 120 F.4th 941, 981 [2d Cir.2024], cert denied ––– U.S. ––––, 145 S.Ct. 1900, 221 L.Ed.2d 646 [2025]).  To the extent the record allows review, because defendant's Bruen claim is unavailing, he was not deprived of the effective assistance of counsel by counsel's failure to challenge the “good moral character” provision (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]).

Defendant's challenge to certain conditions of his probation as not reasonably related to his rehabilitation survive his valid appeal waiver and do not require preservation (see People v. Alvarez, 233 A.D.3d 619, 620, 224 N.Y.S.3d 62 [1st Dept. 2024], lv denied 43 N.Y.3d 961, 232 N.Y.S.3d 442, 258 N.E.3d 1215 [2025];  People v. Arias, 210 A.D.3d 593, 594, 179 N.Y.S.3d 47 [1st Dept. 2022], lv denied 39 N.Y.3d 1109, 186 N.Y.S.3d 844, 208 N.E.3d 72 [2023];  see also People v. Hakes, 32 N.Y.3d 624, 628, n. 3, 94 N.Y.S.3d 221, 118 N.E.3d 883 [2018]).  However, the condition of defendant's probation (Condition No. 7) requiring that he “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people” (based on Penal Law §§ 65.10[2][a], [b]) was providently imposed as reasonably necessary to ensure that defendant “will lead a law-abiding life or to assist him to do so” (Penal Law § 65.10[1]) given that defendant was found in possession of a loaded pistol with a defaced serial number, and he admitted prior use of alcohol and marijuana, association with “the wrong crowd,” and former gang membership (see People v. Rivera, 242 A.D.3d 421, 240 N.Y.S.3d 66 [1st Dept. 2025];  People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025], lv denied 44 N.Y.3d 1012, 244 N.Y.S.3d 516, 271 N.E.3d 718 [2025]).  For these same reasons, the court providently imposed the two conditions of probation (Conditions Nos. 15 and 23) related to drug or alcohol testing or treatment.

Defendant's valid appeal waiver forecloses review of his constitutional as-applied challenge to Condition No. 7 under the First, Fifth, and Fourteenth Amendments (see Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43).  In any event, this claim is unpreserved, and we decline to review it in the interest of justice (see Cabrera, 41 N.Y.3d at 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082;  Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43;  see generally People v. Hanley, 20 N.Y.3d 601, 604, 964 N.Y.S.2d 491, 987 N.E.2d 268 [2013]).

The condition of defendant's probation requiring that he pay the mandatory surcharge and other fees should be stricken as it is not reasonably related to defendant's rehabilitation, or necessary to ensure that he will lead a law-abiding life (see People v. Wood, 239 A.D.3d 484, 484–485, 233 N.Y.S.3d 57 [1st Dept. 2025]).