PEOPLE v. TOLBERT (2026)

Judgment, Supreme Court, Bronx County (Dineen Riviezzo J.), rendered March 20, 2024, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him to five years of probation, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 NY3d 545 [2019], cert denied 589 U.S. 1302, 140 S Ct 2634 [2020] ).  It is not dispositive that the court conducted the colloquy after defendant's allocution (see People v. Cordero, 239 AD3d 487, 487 [1st Dept 2025], lv denied 44 NY3d 1010 [2025] ) or after he signed the written waiver, which he had reviewed with counsel (see People v. Brown, 228 AD3d 465, 465 [1st Dept 2024], lv denied 42 NY3d 1019 [2024] ).  Moreover, while the court and the written waiver did not apprise defendant of his right to counsel on appeal, the totality of circumstances establishes that the waiver of appeal was knowing, voluntary, and intelligent.  Defendant confirmed that he had discussed the plea and waiver with his counsel;  the court explained which rights defendant was waiving and retaining and that those rights were completely separate from the rights he waived by pleading guilty;  and neither the oral colloquy nor the written waiver contained any misstatements of law suggesting that the waiver extinguished defendant's right to appellate counsel (see People v. Santiago, 242 AD3d 519, 520 [1st Dept 2025], lv denied 45 NY3d 938 [2026] ).

Defendant's valid waiver of appeal forecloses review of his excessive sentence claim (see People v. Nunez, 220 AD3d 597, 597 [1st Dept 2023], lv denied 41 NY3d 1004 [2024] ).  In any event, we perceive no basis for reducing the sentence.

Defendant's statutory challenge to the condition of probation requiring him to “avoid injurious or vicious habits,” “refrain from frequenting unlawful or disreputable places,” and “not consort with disreputable people” is unpreserved (see People v. Brazeal, — NY3d —, 2026 N.Y. Slip Op 03910, *5 [2026] ), and we decline to review it in the interest of justice.  As an alternative holding, we find that the court providently deemed this condition reasonably related to defendant's rehabilitation given that defendant was found to be in possession of a loaded unregistered gun on a public street, which he had allegedly bought from someone, and he admitted to marijuana use (see People v. Lowndes, 239 AD3d 574, 575 [1st Dept 2025], lv denied 44 NY3d 1012 [2025] ).

Defendant's constitutional as-applied challenges to the probation condition 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 Lowndes, 239 AD3d at 575).  In any event, those claims are unpreserved, and we decline to review them in the interest of justice (see People v. Cabrera, 41 NY3d 35, 42–51 [2023] ).  As an alternative holding, we reject them on the merits.