The People, etc., respondent, v. Robert Zachary, appellant. (2026)

Argued—June 16, 2026

DECISION & ORDER

W/

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gia L. Morris, J.), rendered November 14, 2023, 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.

Contrary to the People's contention, the defendant's valid appeal waiver does not preclude appellate review of his contention that the sentence imposed was illegal due to the People's failure to establish the requisite tolling periods to bring the defendant's prior felony conviction within the applicable 10–year period (see Penal Law § 70.04[1][b][iv]-[v];  People v. Cofield, 215 AD3d 882, 883).  However, the defendant's contention is not preserved for appellate review (see People v. Lashley, 37 NY3d 1140, 1141;  People v. Spencer, 165 AD3d 706, 707), and it is not reviewable under the narrow illegal sentence exception to the preservation requirement, because it was not readily discernible from the trial record that the sentence the court imposed was not within the permissible range (see People v. Lashley, 37 NY3d at 1141;  People v. Cofield, 215 AD3d at 883).  We decline to reach the issue in the exercise of our interest of justice jurisdiction.

The defendant's valid waiver of his right to appeal largely precludes appellate review of his contention that his adjudication as a second felony offender was unconstitutional in light of Erlinger v. United States (602 U.S. 821) (see People v. Simpson, 244 AD3d 762, 762).  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, _NY3d_, 2025 N.Y. Slip Op 06528;  People v. Smith, 244 AD3d 1144, 1144).  However, the contention is unpreserved for appellate review (see CPL § 470.05[2];  People v. Hernandez, 43 NY3d 591, 597;  People v. Smith, 244 AD3d at 1144), and we decline to reach it in the exercise of our interest of justice jurisdiction (see People v. Smith, 244 AD3d at 1144).

Additionally, the defendant's contention that his sentence was excessive is precluded by his valid waiver of the right to appeal (see People v. Lopez, 6 NY3d 248, 256).

GENOVESI, J.P., CHAMBERS, CHRISTOPHER and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court