PEOPLE v. SUBONTENG (2026)

Judgment, Supreme Court, Bronx County (Dineen A. Riviezzo, J., at plea;  Alvin M. Yearwood, J., at sentencing), rendered May 16, 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, to the extent of striking the 10th condition of probation requiring him to pay $250 in surcharge and fees as a condition of his probation, and otherwise affirmed.

Defendant validly waived his right to appeal under “the totality of the circumstances” (People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. 1302, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]).  Although neither the oral colloquy nor the written waiver advised defendant of his right to counsel on appeal, the record shows that the court thoroughly appraised defendant of what an appeal was and what he was giving up by waiving his right to appeal.  Under the totality of the circumstances, the failure to mention the right to appellate counsel alone is not enough to invalidate the waiver of appeal (see People v. Santiago, 242 A.D.3d 519, 241 N.Y.S.3d 47 [1st Dept. 2025]).  Defendant's valid waiver forecloses review of his excessive sentence claim (see People v. Johnson, 234 A.D.3d 503, 504, 224 N.Y.S.3d 389 [1st Dept. 2025], lv denied 43 N.Y.3d 1009, 234 N.Y.S.3d 790, 261 N.E.3d 925 [2025]).  In any event, we perceive no basis for reducing the sentence.

While defendant's Second Amendment challenge to New York's “good moral character” requirement in its firearm licensing scheme survives his waiver of the right to appeal, it is nevertheless unpreserved (see People v. Johnson ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *9, *10, *15 [2025]), and we decline to review it in the interest of justice.  As an alternative holding, we find it unavailing (see Matter of Caputo v. Kelly, 117 A.D.3d 644, 644, 987 N.Y.S.2d 46 [1st Dept. 2014];  see also Antonyuk v. James, 120 F.4th 941, 1001 [2d Cir. 2024]).

Defendant's contention that counsel rendered ineffective assistance by failing to raise his Second Amendment claim 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 (see People v. Holder, 224 A.D.3d 513, 514, 203 N.Y.S.3d 331 [1st Dept. 2024], lv denied 41 N.Y.3d 1018, 214 N.Y.S.3d 305, 237 N.E.3d 1244 [2024]).

Defendant's challenges to the substance of his probation conditions survive defendant's wavier of the right to appeal and do not require preservation because those challenges implicate the legality of the sentence (see People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025], lv denied 44 N.Y.3d 1018, 244 N.Y.S.3d 516, 271 N.E.3d 718 [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]).  The court providently deemed the seventh probation condition, which requires defendant to “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and [to] not consort with disreputable people,” as reasonably related to defendant's rehabilitation given defendant's multiple prior convictions, unlicensed weapon possession, daily use of marijuana, and the Department of Probation's recommendation that defendant would benefit from drug counseling services (see Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43).  However, we strike the 10th probation condition that required defendant to pay the mandatory surcharge and fees (see People v. Percy, 234 A.D.3d 619, 620, 226 N.Y.S.3d 60 [1st Dept. 2025]).  We note that the People do not oppose this relief.

Defendant's constitutional challenge to the seventh condition of probation is unpreserved (see Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43), and we decline to consider this unpreserved claim in the interest of justice.  As an alternative holding, we find the claim unavailing (see People v. Carrasquillo, 242 A.D.3d 424, 240 N.Y.S.3d 71 [1st Dept. 2025]).