PEOPLE v. RODRIGUEZ (2026)

Judgment, Supreme Court, Bronx County (Steven J. Hornstein, J.), rendered July 7, 2023, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to five years of probation, unanimously affirmed.

Defendant validly waived his right of appeal, which tracked the model colloquy the Court of Appeals endorsed in People v. Thomas, 34 N.Y.3d 545, 567, 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).  “The record does not support defendant's contention that the court misled him as to his right to counsel on any appeal of the limited issues he was still entitled to pursue notwithstanding the waiver” (People v. Jackson, 244 A.D.3d 547, 548, 244 N.Y.S.3d 106 [1st Dept. 2025] ).  Defendant's valid waiver forecloses review of his excessive sentence claim and his as-applied constitutional challenges to the conditions of probation.

Defendant's valid waiver does not foreclose review of his Second Amendment claim pursuant to New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022) because Bruen claims are “facial constitutional challenges” and thus “non-waivable” (People v. Johnson, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *6 [2025] ).  Additionally, defendant has “standing to challenge the facial constitutionality of the state's firearm licensing scheme, notwithstanding his failure to apply for a license” (Johnson, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *10–11).  On the merits, defendant has failed to establish that the indictment is unconstitutional.

To the extent that defendant challenges the “good moral character” provision in Penal Law § 400.00(1)(b), his arguments are unpreserved because he failed to raise them in his motion to dismiss the indictment, and we decline to review them in the interest of justice (see People v. Jacobs, ––– A.D.3d ––––, 248 N.Y.S.3d 200 [1st Dept. 2026] ).  As an alternative holding, we reject them on the merits (see e.g.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 contention that his counsel rendered ineffective assistance in challenging New York's then-former proper-cause requirement, rather than challenging the “good moral character” provision, is “improperly raised for the first time in his reply brief” and is “unreviewable on direct appeal, as it involves matters not reflected in the record, and must be raised in a CPL 440.10 motion” (Jacobs, ––– A.D.3d ––––, 248 N.Y.S.3d 200).  As an alternative holding, insofar as the record allows review, we find that counsel did not render ineffective assistance (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ).

To the extent that defendant raises facial constitutional challenges to probation conditions requiring him to “[a]void injurious or vicious habits,” to “refrain from frequently unlawful or disreputable places,” not to “consort with disreputable people,” and to “[s]upport dependents and meet other family responsibilities” (Penal Law § 65.10[2][a], [b], [f] ), they survive the waiver of the right to appeal (see People v. Tompson, 245 A.D.3d 609–610, 247 N.Y.S.3d 76 [1st Dept. 2026] ).  However, defendant's constitutional challenges are unpreserved because he did not raise them before the trial court (see 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 reach them in the interest of justice.

Defendant's nonconstitutional challenges to his probation conditions do not require preservation because the “issue implicates the legality of the sentence imposed” and survives the waiver of the right to appeal (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] ).  At the time of his arrest, defendant possessed a loaded firearm.  Accordingly, the sentencing court providently deemed it “reasonably necessary” to order defendant to “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people” “to insure that the defendant will lead a law-abiding life or to assist him to do so” (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] ).  The court also providently ordered defendant to “[s]upport his dependents and meet other family responsibilities” (Penal Law § 65.10[2][f] ) because defendant had children “for whom he is obligated to provide support” (People v. Bruno, 244 A.D.3d 1227, 1228, 249 N.Y.S.3d 169 [2d Dept. 2025] ).

We perceive no basis for reducing defendant's sentence.