PEOPLE v. BENEDITH (2026)

Judgment, Supreme Court, Bronx County (Guy H. Mitchell, J. on motion to dismiss;  Albert Lorenzo, J. at plea;  Ralph A. Fabrizio, J. at sentencing), rendered August 28, 2023, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him to five years of probation, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (see 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. ––––, 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 appeal 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 Johnson, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528 at *2–3).

Defendant's challenge to a specific condition of his probation as not reasonably related to his rehabilitation under Penal Law § 65.10(1) survives his valid waiver of his 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], 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]).  The condition requiring that he “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people” (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,” given that he possessed and displayed a loaded revolver and admitted to using marijuana since he was 13 years old (Penal Law § 65.10[1];  see People v. Berry, 242 A.D.3d 644, 644, 241 N.Y.S.3d 669 [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]).

Defendant's constitutional challenges to the probation condition under the First, Fifth, and Fourteenth Amendments are unpreserved (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 review them in the interest of justice.  Were we to do so, we would find them unavailing.