PEOPLE v. BROOKS (2026)

Judgment, Supreme Court, Bronx County (Audrey E. Stone, J. at suppression hearing;  Seth Steed, J. at plea and sentencing), rendered April 12, 2024, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him to five years of probation, unanimously modified, on the law, to the extent of striking the conditions of probation requiring him to pay the surcharge and fees as a condition of his probation, and to “[s]upport dependents and meet other family responsibilities,” and otherwise affirmed.

Defendant validly waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 559–560, 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 court's colloquy tracked the model colloquy, which has been endorsed by the Court of Appeals (id. at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Nunez, 220 A.D.3d 597, 597–598, 197 N.Y.S.3d 61 [1st Dept 2023], lv denied 41 N.Y.3d 1004, 213 N.Y.S.3d 222, 236 N.E.3d 1240 [2024] ).  Contrary to defendant's contention, the fact that he signed the waiver of appeal before his oral colloquy did not render the waiver involuntary or unknowing (see People v. Jackson, 244 A.D.3d 547, 548, 244 N.Y.S.3d 106 [1st Dept 2025], lv denied 45 N.Y.3d 946, 253 N.Y.S.3d 886, 278 N.E.3d 111 [2026];  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];  People v. Castillo, 226 A.D.3d 573, 574, 207 N.Y.S.3d 525 [1st Dept 2024], lv denied 41 N.Y.3d 1017, 214 N.Y.S.3d 306, 237 N.E.3d 1246 [2024] ).  While defendant admitted his guilt in open court before the court addressed the waiver of appeal, he “had a full appreciation of the consequences of the waiver,” and the waiver was voluntary under the “totality of the circumstances” (Jackson, 244 A.D.3d at 548, 244 N.Y.S.3d 106, quoting People v. Castillo, 226 A.D.3d at 574, 207 N.Y.S.3d 525 [internal quotation marks omitted] ).

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 (see Jackson, 244 A.D.3d at 548, 244 N.Y.S.3d 106).

Defendant's voluntary waiver of his right to appeal forecloses review of his suppression claim (see People v. Grullon, 27 A.D.3d 277, 813 N.Y.S.2d 53 [1st Dept 2006] ).  In the alternative, we find that the court's suppression ruling was proper.  While the court's emphasis on the fact that the officer frisked only defendant's right coat pocket, where the officer testified he briefly observed an L-shaped bulge consistent with the presence of a gun, is concerning – because this conduct could as easily follow the perception of a “general bulge,” which does not give rise to reasonable suspicion (see People v. Williams, 79 A.D.2d 147, 151, 436 N.Y.S.2d 15 [1st Dept 1981] ) – the court's finding that the testifying officer was credible was not confined to this circumstance.  The court's credibility determinations are entitled to great deference on appeal (see People v. Lee, 143 A.D.3d 626, 627, 40 N.Y.S.3d 80 [1st Dept 2016], affd 29 N.Y.3d 1119, 61 N.Y.S.3d 522, 83 N.E.3d 852 [2017] ), and “should not be set aside unless clearly unsupported by the record” (People v. Diaz, 68 A.D.3d 642, 644, 894 N.Y.S.2d 1 [1st Dept. 2009], affd 15 N.Y.3d 764, 907 N.Y.S.2d 152, 933 N.E.2d 751 [2010] ).

The valid appeal waiver also forecloses review of defendant's excessive sentence claim.  In the alternative, we perceive no basis for reducing defendant's sentence.

Defendant's valid waiver of the right to appeal “does not foreclose from review his Second Amendment claim, and he has standing to raise his challenge to the constitutionality of New York's firearm licensing scheme, notwithstanding that he never applied to obtain a firearm license” (People v. Rosavong, 245 A.D.3d 482, 482, 248 N.Y.S.3d 195 [1st Dept 2026];  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 claim based on New York State Rifle & Pistol Assn., Inc. v. Bruen (597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 [2022] ) is subject to the preservation requirement and his present claim that the “good moral character” requirement in New York's gun licensing law is unconstitutional was not asserted in the trial court (see 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 entertain them in the interest of justice.  As an alternative holding, we find them unavailing (see Rosavong, 245 A.D.3d 482 –483, 248 N.Y.S.3d 195;  see also Antonyuk v. James, 120 F.4th 941, 981 [2d Cir 2024], cert denied 604 U.S. ––––, 145 S Ct 1900, 221 L.Ed.2d 646 [2025] ).

Defendant's challenge to certain conditions of his probation as not reasonably related to his rehabilitation survive his valid appeal waiver and do not require preservation (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] ).  However, condition 7 of defendant's probation requiring that he “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people” (see Penal Law § 65.10 [2] [a], [b] ) was providently imposed as reasonably necessary to ensure that defendant “will lead a law-abiding life or to assist him to do so” (Penal Law § 65.10[1] ) given that defendant was found in possession of a loaded pistol (see Rosavong, 245 A.D.3d at 483, 248 N.Y.S.3d 195).  Moreover, “[g]iven that defendant's crime took place at night, the court also providently deemed it necessary to order defendant to submit to a curfew if directed to do so by the Department of Probation (condition 9).  Under the circumstances, imposition of a curfew was ‘appropriate to ameliorate the conduct which gave rise to the offense’ and ‘to prevent’ defendant's incarceration (Penal Law § 65.10[5] )” (People v. Ortiz, 246 A.D.3d 442, 444, 248 N.Y.S.3d 56 [1st Dept 2026] ).

The court providently imposed condition 13, which requires defendant to “[w]ork faithfully at suitable employment or pursue a course of study or vocational employment approved by the Department of Probation that can lead to suitable employment” (see Penal Law § 65.10[2][c] ), People v. Graham, 247 A.D.3d 436, 437–438, 251 N.Y.S.3d 103 [1st Dept 2026] ), and condition 15, which requires that he submit to assessment of substance abuse as directed by the Department of Probation, given his admitted daily use of marijuana, except for the two months preceding sentencing, and occasionally drinking alcohol (see People v. Balogh, 245 A.D.3d 572, 574, 249 N.Y.S.3d 446 [1st Dept 2026] ).

However, we strike the requirement that defendant pay the surcharge and fees assessed at sentencing (condition 10), as [t]he imposition of the ․ mandatory surcharge, crime victim's assistance fees, and DNA fees, as a condition of defendant's probation will not assist in ensuring he leads a law-abiding life and is not reasonably related to his rehabilitation” (see People v. Percy, 234 A.D.3d 619, 620, 226 N.Y.S.3d 60 [1st Dept 2025] ).  We also strike the requirement to “support dependents and meet other family responsibilities (condition 14), given that he has no dependents (see People v. Tompson, 245 A.D.3d 609, 610, 247 N.Y.S.3d 76 [1st Dept 2026] ).  We note the People take no position as to the merits of these two conditions.