| People v Liriano |
| 2024 NY Slip Op 02023 [226 AD3d 520] |
| April 16, 2024 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Julin Liriano, Appellant. |
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Abigail Everett ofcounsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Caroline S. Williamson ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Felicia A. Mennin, J., at motion andplea; Neil E. Ross, J., at sentencing), rendered December 6, 2022, as amended January30, 2023, convicting defendant of criminal possession of a weapon in the second degree,criminal possession of a controlled substance in the third degree, and menacing in thesecond degree, and sentencing him, as a second violent felony offender, to an aggregateterm of eight years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal. The court's oral colloquy,which sufficiently distinguished the right to appeal from the trial rights automaticallyforfeited by a guilty plea, taken together with the detailed written waiver that fullyexplained the appellate rights defendant was giving up, established that the waiver wasknowing, intelligent, and voluntary (see People v Thomas, 34 NY3d 545, 559-560 [2019],cert denied 589 US &mdash, 140 S Ct 2634 [2020]). The waiver foreclosesreview of defendant's suppression, Second Amendment, and excessive sentence claims(see People v Johnson, 225 AD3d 453 [1st Dept 2024]; People vGrullon, 27 AD3d 277 [1st Dept 2006]).
Even if the appeal waiver were invalid, defendant did not preserve his arguments thatthe police improperly conducted a security sweep of his house after his arrest (seeMaryland v Buie, 494 US 325 [1990]; People v Lasso-Reina, 305 AD2d 121,122 [1st Dept 2003], lv denied 100 NY2d 595 [2003]) and that the subsequentsearch of the house was illegal because the search warrant was based on informationdiscovered during the unlawful initial entry. The suppression court did not "expresslydecide[ ]" the particular issues now raised on appeal (CPL 470.05 [2]; see People vTurriago, 90 NY2d 77, 83-84 [1997]). We decline to address the unpreserved claimsin the interest of justice. Furthermore, the record is insufficient to permit review of theclaims.
Defendant's Second Amendment challenge to his weapon possession conviction isalso unpreserved (see People vCabrera, 41 NY3d 35, 42-49 [2023]), and we decline to consider it in theinterest of justice. As an alternative holding, we find that on the present record defendantlacked standing to challenge New York's gun licensing scheme because there is noindication that he applied for a gun license (see United States v Decastro, 682F3d 160, 164 [2d Cir 2012], cert denied 568 US 1092 [2013]). Moreover,defendant has failed to establish that his conviction is unconstitutional under NewYork State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]) (see People v Cherif, 220 AD3d543 [1st Dept 2023], lv denied 40 NY3d 1079 [2023]; People v DeLarosa, 219 AD3d1230 [1st Dept 2023], lv denied 40 NY3d 1080 [2023]; People v Adames, 216 AD3d519, 520 [1st Dept 2023], lv denied 40 NY3d 949 [2023]).
Defendant's contention that his counsel rendered ineffective assistance by failing topreserve his Second Amendment claim is unreviewable on direct appeal because it [*2]involves matters not reflected in the record and, thus, mustbe raised in a CPL 440.10 motion (see People v Holder, 224 AD3d 513 [1st Dept 2024]; see also People v Maffei, 35NY3d 264, 269-270 [2020]).
We perceive no basis for reducing the sentence. Concur—Moulton, J.P.,Gesmer, González, Rodriguez, Michael, JJ.