PEOPLE v. SIMMONS (2026)

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered January 4, 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' probation, unanimously affirmed.

Defendant validly waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 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 adequately explained defendant's appellate rights, defendant confirmed that he spoke with counsel, and defendant signed a written waiver (see id. at 559–560, 122 N.Y.S.3d 226, 144 N.E.3d 970).  Defendant's waiver of his right to appeal forecloses review of his excessive sentence claims (see People v. Sanchez, 249 A.D.3d 589, 560, 257 N.Y.S.3d 44 [1st Dept 2026] ).  In any event, we perceive no basis to reduce his sentence.

Defendant's valid appeal waiver does not foreclose 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 WL 3259873, 2025 N.Y. Slip Op. 06528, *2 [2025], cert denied ––– US ––––, ––– S.Ct. ––––, ––– L.Ed. ––––, 2016 WL 1780086 [June 22, 2026] ).  On the merits, he fails to establish that his conviction under Penal Law §§ .03(3) 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] ) (see People v. Rodriguez, 247 A.D.3d 612, 613, 251 N.Y.S.3d 140 [1st Dept 2026], lv denied 45 N.Y.3d 999, 259 N.Y.S.3d 434, 282 N.E.3d 161 [2026];  People v. Peguero, 246 A.D.3d 668, 669, 249 N.Y.S.3d 64 [1st Dept 2026], lv denied 45 N.Y.3d 998, 259 N.Y.S.3d 455, 282 N.E.3d 182 [2026] [Bruen “did not strike down New York's gun-licensing regime in its entirely but rather invalidated the statute's proper cause requirement and left the balance of the statute undisturbed”] ).

To the extent defendant raises arguments challenging 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 (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 review them in the interest of justice.  As an alternative holding, we find them unavailing.