PEOPLE v. SHEMAR (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jill Konviser, J.), rendered January 17, 2023, adjudicating him a youthful offender, upon his plea of guilty to attempted criminal possession of a weapon in the second degree, and 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 modified, as a matter of discretion in the interest of justice, by vacating the imposition of a mandatory surcharge and fees;  as so modified, the judgment is affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Morao, 238 A.D.3d 1175, 1175, 232 N.Y.S.3d 247;  People v. Gutierrez, 237 A.D.3d 743, 743–744, 230 N.Y.S.3d 683).  The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the minimum age requirement in Penal Law § 400.00(1)(a) for obtaining a pistol license is unconstitutional as applied to 18 to 20 year olds (see People v. Johnson, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *2), as well as his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

The defendant's contention that the United States Supreme Court's invalidation of the “proper cause” requirement to obtain a pistol license (see New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 70–71, 142 S.Ct. 2111, 213 L.Ed.2d 387) rendered New York's entire firearm licensing scheme facially unconstitutional is not precluded by his valid waiver of the right to appeal (see People v. Johnson, --- N.Y.3d at ––––, --- N.Y.S.3d ––––, ---N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *2).  However, this contention is without merit (see People v. Johnson, --- N.Y.3d at ––––, --- N.Y.S.3d ––––, ---N.E.3d ––––, 2025 N.Y. Slip Op. 06528, *2–3).

Based on the People's consent, and pursuant to the exercise of our interest of justice jurisdiction, we modify the judgment by vacating the mandatory surcharge and fees imposed on the defendant at sentencing (see CPL 420.35[2–a][c];  People v. Thompson, 225 A.D.3d 713, 206 N.Y.S.3d 715;  People v. Cabrera, 222 A.D.3d 878, 879, 200 N.Y.S.3d 101).

The defendant's remaining contention is without merit.

LASALLE, P.J., VOUTSINAS, LOVE and HOM, JJ., concur.