PEOPLE v. ROSEBOROUGH (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Robert H. Freehill, J., at plea;  Hyun Chin Kim, J., at sentence), rendered April 5, 2021, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant's purported waiver of his right to appeal was invalid (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Richards, 224 A.D.3d 782, 782–783, 205 N.Y.S.3d 200).  The County Court stated to the defendant that as result of his waiver of the right to appeal, “no further review of the plea and sentence will occur and the plea and sentence will be final and irrevocable.”  Thus, the court utterly mischaracterized the nature of the right the defendant was being asked to cede by stating that the waiver would be an absolute bar to the taking of an appeal (see People v. Marte, 226 A.D.3d 926, 926–927, 209 N.Y.S.3d 530;  People v. Richards, 224 A.D.3d at 783, 205 N.Y.S.3d 200;  People v. Dixon, 184 A.D.3d 854, 855, 124 N.Y.S.3d 575).  Under the circumstances, the written waiver of the right to appeal was not sufficient to cure the deficiencies in the court's oral explanation of the waiver (see People v. Matthew M., 224 A.D.3d 927, 929, 206 N.Y.S.3d 671).  Therefore, the purported waiver of the right to appeal does not preclude appellate review of the defendant's constitutional argument.

However, the defendant's contention that Penal Law § 265.03(3) is unconstitutional in light of the decision of the United States Supreme Court in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 is unpreserved for appellate review, since he failed to raise a constitutional challenge before the County Court (see People v. Cabrera, 41 N.Y.3d 35, 41–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082;  People v. Wilson, 222 A.D.3d 1006, 201 N.Y.S.3d 678;  People v. Manners, 217 A.D.3d 683, 685–686, 191 N.Y.S.3d 90).  In any event, the defendant's contention is also without merit.  The Bruen decision had no impact on the constitutionality of New York State's criminal possession of a weapon statutes (see People v. Chase, 223 A.D.3d 913, 913, 204 N.Y.S.3d 221;  People v. Manners, 217 A.D.3d at 686, 191 N.Y.S.3d 90).

Accordingly, we affirm the judgment of conviction.

BARROS, J.P., WOOTEN, TAYLOR and MCCORMACK, JJ., concur.