PEOPLE v. NEVAREZ (2026)

Judgment, Supreme Court, Bronx County (Dineen A. Riviezzo, J.), rendered May 8, 2024, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him, as a second felony offender, to a term of 11/212 to 3 years;  and judgment of resentence, same court (Joseph A. McCormack, J.), rendered January 21, 2025, vacating the second felony offender adjudication and resentencing him to a jail term of 364 days, unanimously affirmed.

Defendant's Second Amendment challenges to New York's gun licensing requirements that applicants demonstrate “good moral character” (Penal Law § 400.00[1][b] ) and that they have “not been convicted anywhere of a felony” (Penal Law § 400.00[1][c] ) are unpreserved (see People v. Cabrera, 41 NY3d 35, 42–51 [2023] ), and we decline to review them in the interest of justice.  As an alternative holding, while defendant has standing to assert these facial challenges notwithstanding that he never applied for a firearm license (see People v. Johnson, ––– NY3d ––––, 2025 N.Y. Slip Op 06528, *2 [2025], cert. denied ––– U.S. –––– [2026] ), he fails to establish that his conviction is unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen (597 U.S. 1 [2022];  see People v. D.H., 247 AD3d 475, 476 [1st Dept 2026], lv denied 45 NY3d 1037 [2026];  People v. Rosavong, 245 AD3d 482, 482–483 [1st Dept 2026] ).

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claims is unreviewable on direct appeal because it involves matters not reflected in the record and thus must be raised in a CPL 440.10 motion (see People v. Velazquez, 33 AD3d 352, 354 [1st Dept 2006], lv denied 7 NY3d 929 [2006] ).  In any event, counsel was not ineffective, as the claims had “little or no chance of success” (People v. Caban, 5 NY3d 143, 152 [2005] [internal quotation marks omitted] ).