Opinion
04-09-2024
The PEOPLE of the State of New York, Respondent, v. Johnny RODRIGUEZ, Defendant-Appellant.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Webber, J.P., Moulton, Kennedy, Rodriguez, O’Neill Levy, JJ.
Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered October 18, 2022, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously affirmed.
[1, 2] Defendant’s waiver of his right to appeal forecloses review of his Second Amendment claim (see People v. Johnson, 225 A.D.3d 453, 206 N.Y.S.3d 584 [1st Dept. 2024]). Regardless of the waiver, defendant’s claim is also unpreserved (see People v. Cabrera, 41 N.Y.3d 35, 39–50, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to consider it in the interest of justice. As an alternative holding, we find that on the present record defendant lacked standing to challenge New York’s gun licensing scheme because there is no indication that he applied for a gun license (see United States v. Decastro, 682 F.3d 160, 164 [2d Cir.2012], cert denied 568 U.S. 1092, 133 S.Ct. 838, 184 L.Ed.2d 665 [2013]) and, moreover, that he has failed to establish that his conviction is unconstitutional under New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2002) (see People v. Cherif, 220 A.D.3d 543, 196 N.Y.S.3d 457 [1st Dept. 2023], lv denied 40 N.Y.3d 1079, 202 N.Y.S.3d 766, 225 N.E.3d 885 [2023]; People v. DeLarosa, 219 A.D.3d 1230, 195 N.Y.S.3d 466 [1st Dept. 2023], lv denied 40 N.Y.3d 1080, 202 N.Y.S.3d 757, 225 N.E.3d 876 [2023]; People v. Adames, 216 A.D.3d 519, 520, 188 N.Y.S.3d 479 [1st Dept. 2023], lv denied 40 N.Y.3d 949, 195 N.Y.S.3d 666, 217 N.E.3d 686 [2023]).
[3] 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. Holder, 224 A.D.3d 513, 203 N.Y.S.3d 331, 2024 N.Y. Slip Op. 00814 [1st Dept. 2024]; see also People v. Maffei, 35 N.Y.3d 264, 269-270, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020]).