PEOPLE v. JHOWALLI (2026)

Judgment, Supreme Court, Bronx County (Steven J. Hornstein, J.), rendered July 12, 2024, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, adjudicating him a youthful offender, and sentencing him to a term of three years of probation, unanimously affirmed.

While defendant, who was barred from obtaining a gun license because he was under 21 years old, has standing to assert his constitutional challenges to the “good moral character” and age requirements in New York's gun licensing law in light of 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, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *2 [2025] ), the latter challenge is unpreserved because it was not asserted in the trial court (see People v. Cabrera, 41 N.Y.3d 35, 42, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and both are without merit.  We held in People v. Guzman, 237 A.D.3d 570, 232 N.Y.S.3d 127 (1st Dept.2025), lv denied 44 N.Y.3d 993, 242 N.Y.S.3d 215, 269 N.E.3d 201 [2025]), that the defendant's challenge to the good moral character requirement “as arbitrary and not founded in objective requirements” was unavailing, and, on several occasions, that New York's age restriction on gun licensing does not offend the Second Amendment (see e.g. People v. Maldonado, 230 A.D.3d 1069, 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]).

Defendant's excessive sentence claim is foreclosed by his valid waiver of the right to appeal (see Guzman, 237 A.D.3d at 570, 232 N.Y.S.3d 127).  As an alternative holding, we perceive no basis for reducing defendant's sentence.

“Defendant's valid waiver of his right to appeal forecloses review of his constitutional as-applied challenges to the probation condition under the First Amendment and the vagueness doctrine of due process under the Fifth and Fourteenth Amendments” (People v. Lowndes, 239 A.D.3d 574, 574, 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];  see also Johnson, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *2).  In any event, his claims are unpreserved, and we decline to review them in the interest of justice (see People v. Cabrera, 41 N.Y.3d 35, 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023];  see also People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457 [2006]).

Defendant's challenges to the conditions of his probation requiring him to “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people” under Penal Law § 65.10(1) and “refrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang if directed by the Department of Probation” survives defendant's waiver of the right to appeal and does not require preservation (see People v. Alvarez, 233 A.D.3d 619, 620, 224 N.Y.S.3d 62 [1st Dept. 2024]).  However, the court providently deemed these conditions “reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so,” given that defendant, 18 at the time of the incident, was found in possession of a pistol, admitted to a prior gun conviction in Connecticut while in high school, reportedly used marijuana on a daily basis, admitted that he “associates with negative peers,” and his mother stated that his friends were a negative influence (see Penal Law § 65.10[1], [2];  Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43;  cf.  People v. Vasquetelles, 241 A.D.3d 1208, 1209, 242 N.Y.S.3d 589 [1st Dept. 2025]).