PEOPLE v. MCARN (2026)

Judgment, Supreme Court, Bronx County (Jeffrey Rosenblueth, J.), rendered May 4, 2023, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of five years of probation, unanimously modified, on the law, to the extent of striking the condition of probation requiring him to refrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang if directed by the Department of Probation, and otherwise affirmed.

Defendant validly waived 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]), foreclosing review of his excessive sentence claim.  In any event, there is no basis to reduce the sentence.

Defendant's challenges to two of his probation conditions as unrelated to his rehabilitation do not require preservation and survive his appeal waiver (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]).  The court providently found that the condition of defendant's probation requiring him to “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and [t]o not consort with disreputable people,” 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]), given his possession of a loaded pistol and his admission to the Department of Probation that he associated with “horrible peers” (see 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]).

However, the probation condition requiring defendant to “[r]efrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang if directed by the Department of Probation” should be stricken, as there is no evidence that defendant's crime was connected to any gang activities or that he has any history of gang membership or gang affiliation (People v. Holguin, 243 A.D.3d 419, 420, 245 N.Y.S.3d 35 [1st Dept. 2025]).

Defendant's facial constitutional challenges survive his waiver of appeal (see People v. Johnson, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *2 [2025]).  However, they are unpreserved, and we decline to review them in the interest of justice (see People v. Cabrera, 41 N.Y.3d 35, 51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]).