PEOPLE v. MAZYCK (2026)

Judgment, Supreme Court, Bronx County (Steven Hornstein, J., on motion;  Dineen Riviezzo, J., at plea and sentencing), rendered May 22, 2024, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to five years’ probation, unanimously modified, on the law, to the extent of striking the condition of probation requiring him to pay $375 in surcharge and fees as a condition of his probation, and otherwise affirmed.

Defendant validly waived his right to appeal, which forecloses review of his claim that his sentence is excessive (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]).  In any event, we perceive no basis for reducing the sentence.

However, defendant's challenge to the condition of probation requiring that he pay the mandatory surcharge and court fees survives his waiver of the right to appeal (see 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]).  Defendant is the full-time caregiver of his and his employed girlfriend's children and is indigent.  We find that the imposition of the $375 sum, comprised of the mandatory surcharge, crime victim's assistance fees, and DNA fees, as a condition of defendant's probation will not assist in ensuring that he leads a law-abiding life and is not reasonably related to his rehabilitation (see People v. Percy, 234 A.D.3d 619, 620, 226 N.Y.S.3d 60 [1st Dept. 2025]).  Accordingly, that condition is stricken.  We note that the People do not oppose this relief.

Defendant's challenge to the condition 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” as unrelated to his rehabilitation is an issue that “implicates the legality of the sentence imposed” (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]).  Thus, “it survives [his] waiver of the right to appeal and does not require preservation for appellate review” (id. at 620, 224 N.Y.S.3d 62;  see People v. Hakes, 32 N.Y.3d 624, 628 n 3, 94 N.Y.S.3d 221, 118 N.E.3d 883 [2018]).  Nevertheless, where defendant was found in possession of a loaded gun and ammunition, the court providently concluded that this condition was “reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so” (Penal Law § 65.10[1];  see People v. Letterlough, 86 N.Y.2d 259, 263, 631 N.Y.S.2d 105, 655 N.E.2d 146 [1995];  People v. Lowndes, 239 A.D.3d 574, 575, 235 N.Y.S.3d 43 [1st Dept. 2025]).

Defendant's valid waiver of his right to appeal forecloses review of his constitutional challenges to the probation conditions (see Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43).  In addition, his constitutional 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];  Lowndes, 239 A.D.3d at 575, 235 N.Y.S.3d 43).

Defendant's Second Amendment challenge to the “good moral character” provision in Penal Law § 400.00(1)(b) is unpreserved because he failed to raise it in his motion to dismiss the indictment (see People v. Martinez, 238 A.D.3d 423, 424, 231 N.Y.S.3d 479 [2025]), and we decline to review it in the interest of justice.  As an alternative holding, we find his claim to be unavailing.