PEOPLE v. SMALLS (2026)

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J., at plea;  Ralph A. Fabrizio, J., at sentencing), rendered on June 28, 2024, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree, and sentencing him to a term of two years of probation, unanimously affirmed.

Defendant validly waived his right to appeal, since “the totality of the circumstances reveals that [he] understood the nature of the appellate rights being waived” (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]).  Nevertheless, his facial constitutional challenge to New York's firearms licensing scheme premised on (New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 [2022]) survives the waiver (see People v. Johnson, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *2 [2025]).  However, defendant failed to preserve this claim (see People v. Cabrera, 41 N.Y.3d 35, 45–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to review it in the interest of justice.  As an alternative holding, while defendant has standing to raise his claim, notwithstanding that he never applied for a firearm license (see Johnson, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528 at *2), we reject defendant's challenge to the “good moral character” provision (Penal Law § 400.00[1][b]) on the merits (see People v. Guzman, 237 A.D.3d 570, 571, 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]).

Defendant's claim that his counsel was ineffective for failing to raise a Bruen 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” (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]).  In any event, counsel's failure to raise the Bruen claim was not ineffective, since that claim had “little or no chance of success” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] [internal quotation marks omitted]).