PEOPLE v. JOHNSON (2026)

Judgment, Supreme Court, Bronx County (George R. Villegas, J., at suppression hearing, plea and sentencing), rendered January 9, 2024, convicting defendant of criminal possession of a weapon in the fourth degree, and sentencing him to a two-year term of probation, unanimously affirmed.

Defendant validly waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 559–560, 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].  However, defendant's facial constitutional challenge to New York's gun licensing scheme pursuant to New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022) survives his voluntary waiver (People v. Johnson, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *2 [2025]).  He also has standing to assert this facial challenge (Johnson, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *2).  In contrast, defendant's discrete as-applied constitutional challenge to the “good moral character” requirement of the licensing scheme is encompassed by defendant's valid appeal waiver and he lacks standing in any event (id.).  This argument is also unpreserved because he did not raise it in the trial court (see People v. Martinez, 238 A.D.3d 423, 424, 231 N.Y.S.3d 479 [1st Dept. 2025]), and we decline to review it in the interest of justice.  Further, defendant's constitutional challenges are not properly before this Court because defendant failed to serve notice of these claims on the Attorney General pursuant to Executive Law 71 (see People v. Castillo, 234 A.D.3d 557, 558, 225 N.Y.S.3d 235 [1st Dept. 2025], lv denied 43 N.Y.3d 1006, 234 N.Y.S.3d 814, 261 N.E.3d 949 [2025]).

In the alternative, defendant's constitutional challenges are unavailing.  The facial challenge fails because Bruen did not invalidate New York's gun licensing scheme in its entirety (see People v. Martin, 241 A.D.3d 1211, 1212, 243 N.Y.S.3d 366 [1st Dept. 2025]).  As to defendant's challenge to the good moral character requirement, defendant's failure to preserve the issue leaves a record wholly inadequate to determine whether that limitation “is consistent with this Nation's historical tradition of firearm regulation” (Bruen, 597 U.S. at 34, 142 S.Ct. 2111).

Defendant also argues that, based on a suppression hearing cut short by defendant's guilty plea, we should rule, in the interest of justice, that the police engaged in a “flagrant constitutional violation” by opening defendant's fanny pack, revealing a gun inside.  Defendant forfeited the argument by pleading guilty before the suppression hearing was completed and expressly waived it when he voluntarily waived the right to appeal (see People v. Fernandez, 67 N.Y.2d 686, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986];  People v. Fagairo, 149 A.D.3d 537, 538, 52 N.Y.S.3d 354 [1st Dept. 2017]).  In any event, the truncated record is inadequate for appellate review (see Fernandez, 67 N.Y.2d at 688, 499 N.Y.S.2d 919, 490 N.E.2d 838).