PEOPLE v. ROBLES (2026)

Judgment, Supreme Court, Bronx County (Jeffrey M. Zimmerman, J.), rendered October 10, 2024, 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 three years, unanimously 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. 1302, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ), which forecloses review of his excessive sentence claim (see People v. Pineda, 232 A.D.3d 554, 554, 221 N.Y.S.3d 79 [1st Dept. 2024], lv denied 43 N.Y.3d 965, 232 N.Y.S.3d 447, 258 N.E.3d 1220 [2025] ).  In any event, we perceive no basis for reducing the sentence.

Defendant's valid appeal waiver does not foreclose from review of his challenge to the constitutionality of New York's firearm licensing scheme, and he has standing to raise that claim (see People v. Johnson, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *2 [2025] ).  However, defendant's Second Amendment challenge is unpreserved (see People v. Cabrera, 41 N.Y.3d 35, 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023];  People v. Watts, 234 A.D.3d 620, 621, 226 N.Y.S.3d 65 [1st Dept. 2025], lv denied 43 N.Y.3d 1059, 239 N.Y.S.3d 101, 265 N.E.3d 1118 [2025] ), and we decline to review it in the interest of justice.  As an alternative holding, we find that defendant has failed to establish that the instant indictment is unconstitutional under New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022).

Defendant also failed to preserve any challenge to the constitutionality of the indictment based on the charge of Penal Law § 265.02(8), which prohibits the possession of large-capacity ammunition feeding devices (see Cabrera, 41 N.Y.3d at 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082;  Watts, 234 A.D.3d at 621, 226 N.Y.S.3d 65), and we decline to review such claim in the interest of justice.  In any event, this challenge is moot because defendant was not convicted of that offense (see People v. Ruiz, 146 A.D.3d 417, 417, 43 N.Y.S.3d 743 [1st Dept. 2017], lv denied 28 N.Y.3d 1188, 52 N.Y.S.3d 714, 75 N.E.3d 106 [2017] ).

Defendant's contention that his counsel rendered ineffective assistance in failing to raise his Second Amendment challenge is unreviewable on direct appeal as it involves matters not reflected in the record, and it must be raised in a CPL 440.10 motion (see People v. Martinez, 231 A.D.3d 448, 449, 217 N.Y.S.3d 553 [1st Dept. 2024], lv denied 42 N.Y.3d 1081, 227 N.Y.S.3d 575, 252 N.E.3d 514 [2025] ).  As an alternative holding, and to the extent the record allows review, we find that he was not deprived of the effective assistance of counsel by counsel's failure to challenge New York's good moral character provision (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ).