THE PEOPLE OF THE STATE OF NEW YORK v. STEVEN HERNANDEZ (2026)

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Alec Miran of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Emily Anne Aldridge of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Tara A. Collins, J., at plea;  Seth Steed, J., at sentencing), rendered July 16, 2024, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of three years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed on him at sentencing, and otherwise affirmed.

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, — NY3d —, —, 2025 N.Y. Slip Op 06528, *2 [2025], cert denied US, 2026 WL 1780086).  However, 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 [2022] ) (see People v. Robles, 247 AD3d 617, 617–618 [1st Dept 2026] ).

Defendant's valid appeal waiver, however, forecloses review of his as-applied constitutional challenge to the age restriction in New York's gun licensing scheme (see People v. Johnson, 2025 N.Y. Slip Op 06528, *2;  People v. Batista, 248 AD3d 669, 669–670 [1st Dept 2026] ).  In any event, the claim has no merit (see Batista, 248 AD3d at 670).  Defendant's challenges to the “good moral character” licensing requirement under Penal Law § 400(1)(b) and New York's ban on large-capacity magazines (Penal Law § 265.02[8] ) are unpreserved because he failed to raise them in his motion to dismiss the indictment (see People v. Cabrera, 41 NY3d 35, 42–51 [2023];  People v. Williams, 246 AD3d 670, 671 [1st Dept 2026] ), and we decline to review them in the interest of justice.  In any event, the latter challenge is moot because defendant was not convicted of that count (see Williams, 246 AD3d at 671;  People v. Watts, 234 AD3d 620, 621 [1st Dept 2025], lv denied 43 NY3d 1059 [2025] ).

Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing (see People v. Chirinos, 190 AD3d 434 [1st Dept 2021] ).  We note that the People do not oppose this relief.