PEOPLE v. SMITH (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Eugene M. Guarino, J.), rendered May 24, 2022, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Esson, 225 A.D.3d 786, 205 N.Y.S.3d 496).  Contrary to the defendant's contention, the Supreme Court adequately explained, and the defendant acknowledged that he understood, the separate and distinct nature of the waiver of the right to appeal (see People v. Esson, 225 A.D.3d at 787, 205 N.Y.S.3d 496;  People v. Headley, 197 A.D.3d 1329, 1330, 151 N.Y.S.3d 905).  The defendant's valid waiver of his right to appeal precludes appellate review of his challenges to the court's suppression determination (see People v. Callejo, 237 A.D.3d 1218, 1219, 231 N.Y.S.3d 628;  People v. Vidal, 233 A.D.3d 1055, 1055, 222 N.Y.S.3d 664) and to the procedure used to adjudicate him a second felony offender (see People v. Simpson, ––– A.D.3d ––––, 243 N.Y.S.3d 528;  People v. Leon, 200 A.D.3d 717, 717, 154 N.Y.S.3d 875;  People v. Meyers, 172 A.D.3d 1236, 1237, 98 N.Y.S.3d 879;  People v. Rodriguez, 82 A.D.3d 794, 795, 917 N.Y.S.2d 917).

To the extent the defendant contends that New York's predicate felony offender statutes are facially unconstitutional, that contention is not precluded by the appeal waiver (see People v. Johnson, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528).  However, that contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Hernandez, 43 N.Y.3d 591, 597, 239 N.Y.S.3d 59, 265 N.E.3d 1076;  People v. Munoz, 237 A.D.3d 1110, 1111, 230 N.Y.S.3d 414), and we decline to reach it in the exercise of our interest of justice jurisdiction (see People v. Munoz, 237 A.D.3d at 1111, 230 N.Y.S.3d 414).

CHAMBERS, J.P., WOOTEN, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.