PEOPLE v. MCLEAN (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dineen Riviezzo, J.), rendered January 31, 2023, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, his waiver of the right to appeal was valid.  Although much of the discussion of the waiver of his right to appeal took place after the defendant had admitted his guilt, the Supreme Court advised the defendant prior to his plea of guilty and admission of guilt that the appeal waiver was part of the bargained-for benefit the defendant received with his plea (see People v. Thomas, 34 N.Y.3d 545, 558, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Victor, 235 A.D.3d 783, 226 N.Y.S.3d 592;  People v. White, 234 A.D.3d 884, 225 N.Y.S.3d 378).  Further, the court confirmed that the defendant had discussed his appeal waiver with his counsel.  Under the totality of the circumstances, including the defendant's execution of a written waiver of his right to appeal, and the defendant's age, experience, and background, his waiver was knowing, voluntary, and intelligent (see People v. Sanders, 25 N.Y.3d 337, 340, 12 N.Y.S.3d 593, 34 N.E.3d 344;  People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645).

The defendant's valid waiver of his right to appeal precludes appellate review of his contention that his adjudication as a second felony offender is unconstitutional in light of (Erlinger v. United States, 602 U.S. 821, 144 S.Ct. 1840, 219 L.Ed.2d 451) (see People v. Esquivel, 100 A.D.3d 652, 652, 953 N.Y.S.2d 163;  People v. Haynes, 70 A.D.3d 718, 719, 893 N.Y.S.2d 284;  cf.  People v. Cofield, 215 A.D.3d 882, 883, 186 N.Y.S.3d 385).

The defendant's constitutional challenge to the State's firearm licensing scheme in light of (New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387) is not precluded by his valid appeal waiver (see People v. Johnson, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *3).  However, as the defendant failed to raise the constitutional challenge before the Supreme Court, it is unpreserved for appellate review (see CPL 470.05[2];  People v. Johnson, ––– N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *3–4;  People v. Cabrera, 41 N.Y.3d 35, 42, 207 N.Y.S.3d 18, 230 N.E.3d 1082), and we decline to reach it in the exercise of our interest of justice jurisdiction.

DILLON, J.P., IANNACCI, DOWLING and MCCORMACK, JJ., concur.