THE PEOPLE OF THE STATE OF NEW YORK v. ANTOINE BROWN (2026)

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Luz Beato of counsel) for appellant.

Darcel D. Clark, District Attorney, Bronx (Gamaliel Marrero of counsel) for respondent.

Judgment, Supreme Court, Bronx County (Alvin Yearwood, J., at plea;  Dineen Riviezzo, J., at sentencing), rendered August 30, 2023, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a five-year term of probation, unanimously affirmed.

Defendant's valid waiver of his right to appeal does not foreclose review of his challenge to the constitutionality of New York's firearm licensing scheme, and he has standing to raise that claim (see People v. Johnson, — NY3d —, —, 2025 N.Y. Slip Op 06528, *2 [2025], cert. denied _US_, 2026 WL 1780086 [June 22, 2026] ).  However, defendant's claim is unpreserved (see People v. Cabrera, 41 NY3d 35, 41–51 [2023] ), and we decline to review it in the interest of justice.  In any event, defendant has failed to establish that the instant indictment is unconstitutional under New York State Rifle & Pistol Assn., Inc., (597 U.S. 1 [2022] ) (see People v. Carr, 248 AD3d 663, 664 [1st Dept 2026] ).

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and thus must be raised in a CPL 440.10 motion (see People v. Faulkner, 248 AD3d 665, 666 [1st Dept 2026];  People v. Williams, 237 AD3d 569, 570 [1st Dept 2025], lv denied 44 NY3d 1014 [2025] ).  In any event, counsel was not ineffective because the claim had “little or no chance of success” (People v. Caban, 5 NY3d 143, 152 [2005] [internal quotation marks omitted] ).

Defendant's excessive sentence claim is foreclosed by his valid waiver of the right to appeal.  As an alternative holding, we perceive no basis to reduce defendant's sentence.