PEOPLE v. HERNANDEZ (2026)

Judgment, Supreme Court, Bronx County (Steven J. Hornstein, J.), rendered July 22, 2025, 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, as a matter of discretion in the interest of justice, to the extent of striking the conditions of probation requiring defendant to pay a surcharge and fees;  undergo medical/psychiatric treatment and/or remain in a specified institution if directed by the Department of Probation;  and refrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang if directed by the Department of Probation, and otherwise affirmed.

Defendant validly waived his right to appeal (see People v Thomas, 34 NY3d 545 [2019], cert denied 589 US 1302 [2020] ).  However, his appeal waiver 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 (see People v Johnson, ––– NY3d ––––, 2025 NY Slip Op 06528, *2, cert denied ––– US –––– [2026] ).  Nevertheless, defendant's challenge to New York's “good moral character” provision (Penal Law § 400.00[1][b] ) is unavailing, and he has failed to establish that the indictment is unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022];  see Johnson, 2025 NY Slip Op 06528 at *2–3;  see also United States v Rahimi, 602 US 680, 693 [2024];  Antonyuk v James, 120 F4th 941, 981–983 [2d Cir2024], cert denied ––– US ––––, 145 S Ct 1900 [2025] ).

Defendant's challenges to certain conditions of his probation as not reasonably related to his rehabilitation under Penal Law § 65.10(1) are unpreserved because he failed to raise these claims at the time of sentencing (see People v Brazeal, ––– NY3d ––––, 2026 NY Slip Op 03910, *5 [2026] ), however, we exercise our discretion to review defendant's claims in the interest of justice.  We find that the court providently imposed the condition of probation requiring defendant to “[a]void injurious or vicious habits;  refrain from frequenting unlawful or disreputable places;  and ․ not consort with disreputable people” (Condition No. 7) (see Penal Law §§ 65.10[1], [2][a], [2][b] ), as “reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so” (Penal Law §§ 65.10[1] ), given that he was found in possession of a loaded pistol (see People v Parker, 248 AD3d 593, 594 [1st Dept 2026] ).  The court also providently imposed the condition which requires defendant to “[s]upport his dependents and meet other family responsibilities” (Condition No. 14) (Penal Law § 65.10[2][f] ) because he has two children whom he is raising (see People v Rodriguez, 247 AD3d 612, 614 [1st Dept 2026], lv denied 45 NY3d 999 [2026] ).

The court providently imposed the requirement that defendant “[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” (Condition No. 13) (Penal Law § 65.10[2][c] );  the requirement that defendant submit to assessments of alcohol use or substance abuse as directed by the Department of Probation (Condition No. 15);  and that defendant participate in alcohol or substance abuse programming as directed by the Department of Probation (Condition No. 23), given that defendant admitted to consuming alcohol beginning when he was 16 years old and to daily marijuana use since he was between 14 and 15 years old, and that the Department of Probation concluded that defendant could benefit from further assessment and evaluation for substance abuse in a clinical setting (see People v Rosavong, 245 AD3d 482, 483 [1st Dept 2026] ).

However, the condition of defendant's probation requiring that he pay the mandatory surcharge and other fees (Condition No. 10) is not reasonably related to defendant's rehabilitation, or necessary to ensure that he will lead a law-abiding life, and must be stricken (see People v Gausney, 245 AD3d 526, 527–528 [1st Dept 2026] ).  We note that the People do not oppose this relief.

The requirement that defendant undergo medical or psychiatric treatment if directed by the Department of Probation (Condition No. 22), should also be stricken because defendant denied having any mental health issues and the Department of Probation did not make any recommendation with respect to mental health treatment (see People v Rivas, 248 AD3d 692, 694 [1st Dept 2026] ).

Similarly, requiring defendant to “[r]efrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang if directed by the Department of Probation” (Condition No. 24) should be stricken because there is no evidence that this offense was the result of, or related to, gang activity, or that defendant had a history of gang membership (see People v Vasquetelles, 241 AD3d 1208, 1209 [1st Dept 2025], lv denied 44 NY3d 1054 [2025] ).

Defendant's as-applied constitutional challenges to Condition No. 7 under the First Amendment and the vagueness doctrine of due process under the Fifth and Fourteenth Amendments are foreclosed by his valid waiver of appeal (see People v Tompson, 245 AD3d 609, 610–611 [1st Dept 2026] ).  To the extent that defendant's claims are facial constitutional challenges, they survive his appeal waiver (see Johnson, 2025 NY Slip Op 06528, *2).  However, these constitutional challenges are unpreserved (see People v Cabrera, 41 NY3d 35, 42 [2023] ), and we decline to review them in the interest of justice.

Defendant's valid waiver of appeal does not foreclose from review his excessive sentence claim because the court expressly excluded a challenge to the excessiveness of the sentence from the claims foreclosed by a waiver of the right to appeal (see People v Arriaza–Ortega, 216 AD3d 1175, 1175 [2d Dept 2023], lv denied 40 NY3d 932 [2023] ).  However, we perceive no basis for reducing the sentence.