PEOPLE v. WHITNEY (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jill Hedy Konviser, J.), rendered September 15, 2022, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's waiver of his right to appeal was valid (see People v. Richards, 238 A.D.3d 1176, 1176, 232 N.Y.S.3d 247;  People v. Victor, 235 A.D.3d 783, 784, 226 N.Y.S.3d 592).  Contrary to the defendant's contention, the appeal waiver was mentioned as being a condition of the plea agreement prior to the defendant's plea of guilty and admission of guilt (see People v. Sutton, 184 A.D.3d 236, 245, 125 N.Y.S.3d 739).  Under the totality of the circumstances, the appeal 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 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 [Cannataro, J., concurring];  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.

DUFFY, J.P., CONNOLLY, LOVE and QUIRK, JJ., concur.