PEOPLE v. HOLLEY (2026)

Judgment, Supreme Court, Bronx County (Seth Steed, J.), rendered October 2, 2024, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a jail term of six months and five years of probation, unanimously modified, on the law, to the extent of striking the condition of probation requiring defendant to pay the surcharge and fees imposed at sentencing, and otherwise affirmed.

Defendant validly waived his right to appeal, as Supreme Court's colloquy regarding the waiver tracked the model colloquy that has been endorsed by the Court of Appeals (see People v. Thomas, 34 N.Y.3d 545, 559, 567, 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 addition, defendant acknowledged that he spoke with counsel and reviewed the written waiver before signing it (see People v. Rosario, 242 A.D.3d 527, 527, 241 N.Y.S.3d 52 [1st Dept. 2025];  see also People v. Yizar, 240 A.D.3d 416, 416, 235 N.Y.S.3d 47 [1st Dept. 2025], lv denied 44 N.Y.3d 985, 241 N.Y.S.3d 147, 267 N.E.3d 1215 [2025]).  In any event, we perceive no basis for reducing the sentence.

Defendant's Second Amendment claim is not properly before us because he has not served the Attorney General with notice of his constitutional challenge in accordance with 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]).  As an alternative holding, we find that defendant's challenge to the “good moral character” licensing requirement under Penal Law § 400.00(1)(b) is unpreserved for our review, as he did not raise it before the motion court in support of his broader challenge to his conviction under (New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 [2022]) (see People v. Martinez, 238 A.D.3d 423, 424, 231 N.Y.S.3d 479 [1st Dept. 2025];  People v. Cabrera, 41 N.Y.3d 35, 42, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to review it in the interest of justice.  In any event, we reject the challenge 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]).  We also reject defendant's contention that he received ineffective assistance of counsel as a result of his failure to notify the Attorney General under Executive Law § 71, as his challenge to the “good moral character” licensing requirement was unavailing and counsel cannot be ineffective for failing to raise an argument that 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]).

Defendant's challenges to two of his probation conditions as unrelated to his rehabilitation do not require preservation and survive his waiver of the right to appeal (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]).  Upon our review of those challenges, we find that the court providently imposed the condition of probation requiring defendant to “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people” as “reasonably necessary to [e]nsure that the defendant will lead a law-abiding life or to assist him to do so,” given that he was found in possession of loaded pistol and admitted to the Probation Department that he used marijuana on a daily basis and was a gang member (Penal Law §§ 65.10[1], [2];  see e.g. People v. Rivera, 242 A.D.3d 421, 422, 240 N.Y.S.3d 66 [1st Dept. 2025];  People v. Lombard, 241 A.D.3d 1126, 1126, 242 N.Y.S.3d 4 [1st Dept. 2025]).  Defendant's constitutional challenges to this condition are unpreserved (see People v. Rivera, 242 A.D.3d 421, 422, 240 N.Y.S.3d 66 [1st Dept. 2025];  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.

However, we strike the condition requiring defendant to pay the surcharge and fees imposed at sentencing as a condition of his probation, as that condition is not reasonably related to defendant's rehabilitation or necessary to ensure that he will lead a law-abiding life (see e.g. People v. Percy, 234 A.D.3d 619, 620, 226 N.Y.S.3d 60 [1st Dept. 2025]).  We note that the People do not oppose this relief.