Opinion
03-26-2024
The PEOPLE of the State of New York, Respondent, v. Andre JACKSON, Defendant–Appellant.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.
Singh, J.P., Moulton, Friedman, Scarpulla, O’Neill Levy, JJ.
Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered November 1, 2022, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree and criminal possession of a firearm, and sentencing him, as a second felony offender, to an aggregate term of four years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. —, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]), which forecloses review of his excessive sentence claim. In any event, we perceive no basis for reducing the sentence.
Defendant’s Second Amendment challenge is likewise waived (see People v. Johnson, 225 A.D.3d 453, 206 N.Y.S.3d 584 [1st Dept. 2024]), and, in any case, is unpreserved (see People v. Cabrera, 41 N.Y.3d 35, 207 N.Y.S.3d 18 [2023]). We decline to review it in the interest of justice. Defendant’s contention that we should address his claim because his counsel rendered ineffective assistance in failing to raise it 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. Gomez, 186 A.D.3d 422, 423–424, 129 N.Y.S.3d 60 [1st Dept. 2020]). As an alternative holding, we find that on the present record, defendant has failed to establish that he has standing to challenge Penal Law § 265.01–b(1), or that the statute 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 (2022) (see Johnson, 225 A.D.3d 453, 206 N.Y.S.3d 584).