PEOPLE v. MURDAUGH (2026)

Judgment, Supreme Court, Bronx County (Jeffrey M. Zimmerman, J.), rendered June 27, 2024, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree, and sentencing him to three 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 imposed at sentencing and to support dependents and meet other family responsibilities, and otherwise affirmed.

Defendant validly waived his right to appeal which forecloses review of his excessive sentence claim (see People v Thomas, 34 NY3d 545 [2019], cert denied 589 US 1302 [2020];  People v Nunez, 220 AD3d 597, 597 [1st Dept 2023], lv denied 41 NY3d 1004 [2024] ).  The court's colloquy tracked the model colloquy, which has been endorsed by the Court of Appeals (see People v Thomas, 34 NY3d at 567), in that it both explained the appeal waiver in detail and sought defendant's confirmation that he understood the meaning and consequences of his appeal waiver.  “The fact that the court conducted its colloquy after defendant signed the written waiver, which he reviewed with counsel, did not render his waiver involuntary or unknowing” (People v Brown, 228 AD3d 465, 465 [1st Dept 2024], lv denied 42 NY3d 1019 [2024] ).  As an alternative holding, we perceive no basis for reducing the sentence.

Defendant's valid waiver does not foreclose review of his Second Amendment challenge to New York's “good moral character” provision (Penal Law § 400.00[1][b] ), and he has standing to raise this claim, notwithstanding that he never applied to obtain a firearm license (see People v Johnson, ––– NY3d ––––, 2025 NY Slip Op 06528, *2, 5 [2025], cert. denied ––– US –––– [2026] ).  Although defendant's arguments are preserved, we reject them on the merits (see People v Guzman, 237 AD3d 570, 571 [1st Dept 2025], lv denied 44 NY3d 993 [2025];  see also People v Rosavong, 245 AD3d 482, 482–483 [1st Dept 2026];  People v Martinez, 238 AD3d 423, 424 [1st Dept 2025], lv denied 44 NY3d 1067 [2026] ).

Defendant's challenges to his conditions of probation as unrelated to his rehabilitation also survive the waiver of the right to appeal and do not require preservation (see People v Rosavong, 245 AD3d at 483;  People v Alvarez, 233 AD3d 619, 620 [1st Dept 2024], lv denied 43 NY3d 961 [2025] ).  The court providently imposed the conditions requiring that defendant “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people” 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] ).  Here, defendant was found in possession of a loaded pistol and extra ammunition.  Furthermore, he has a prior expired order of protection, was under the influence of marijuana at the time of the offense, admitted to the daily use of marijuana since the age of 18, and was recommended by the Department of Probation to undergo assessment for a drug program (see People v Lombard, 241 AD3d 1126, 1126 [1st Dept 2025];  People v Lowndes, 239 AD3d 574, 575 [1st Dept 2025], lv denied 44 NY3d 1012 [2025] ).  Defendant's constitutional challenges to this condition are unpreserved (see People v Lowndes, 239 AD3d at 575;  People v Rivera, 242 AD3d 421, 422 [1st Dept 2025], lv denied 44 NY3d 1067 [2026];  see also People v Cabrera, 41 NY3d 35, 42–51 [2023] ), and we decline to review them in the interest of justice.

The probation condition to “[k]eep a curfew, if directed by the Department of Probation” was also providently imposed.  Given that defendant purportedly possessed the pistol for self-defense against robberies and that the underlying domestic dispute leading to his arrest occurred after midnight, it was reasonable for the court to grant the Probation Department the discretion to impose a curfew on defendant, particularly in light of his background involving altercations and drug use (see People v Brooks, 251 AD3d 437, 438–439 [1st Dept 2026] ).

However, we strike the probation condition requiring defendant to pay the surcharge and fees imposed at sentencing, as “the 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” (id.;  see People v Percy, 234 AD3d 619, 620 [1st Dept 2025] ).  We also strike the condition requiring defendant to “[s]upport dependents and meet other family responsibilities” given that he has no dependents (cf.  People v Rodriguez, 247 AD3d 612, 614 [1st Dept 2026], lv denied 45 NY3d 999 [2026] ).  We note that the People do not oppose this relief.