| People v Velardo |
| 2024 NY Slip Op 03344 [228 AD3d 520] |
| June 18, 2024 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Matthew Velardo, Appellant. |
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Abigail Everett ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Emily A. Aldridge of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Naita A. Semaj, J.), rendered January 5,2023, convicting defendant, upon his plea of guilty, of criminal possession of a weaponin the fourth degree, and sentencing him to two years' probation, unanimouslyaffirmed.
Defendant made a valid waiver of his right to appeal (see People v Thomas, 34 NY3d545 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]), whichforecloses review of his Second Amendment claim (see People v Johnson, 225 AD3d 453 [1st Dept 2024]).Regardless of the waiver, defendant's claim is also unpreserved (see People v Cabrera, 41 NY3d35, 42-51 [2023]), and we decline to consider it in the interest of justice. As analternative holding, we find that on the present record, defendant has standing tochallenge his conviction notwithstanding his failure to apply for a gun license becausehis submission of an application for a license would have been futile, given that assaultweapons are subject to a complete ban (see People v Archibald, 225 AD3d 548, 549 [1st Dept2024]; see also United States v Decastro, 682 F3d 160, 164 [2d Cir 2012],cert denied 568 US 1092 [2013]). Nevertheless, defendant has not establishedthat the ban is unconstitutional under New York State Rifle & Pistol Assn., Inc.v Bruen (597 US 1 [2022]) (see Archibald, 225 AD3d at 549; People v Guity, 223 AD3d598, 599 [1st Dept 2024]).
Defendant's contention that his counsel rendered ineffective assistance by failing topreserve his Second Amendment claim is unreviewable on direct appeal because itinvolves matters not reflected in the record and, thus, must be raised in a CPL 440.10motion (see People vHolder, 224 AD3d 513, 514 [1st Dept 2024]).
Defendant's challenge to the condition of his probation requiring that he consent tosearches of his person, vehicle, and place of abode by a probation officer for weaponsand other contraband survives the appeal waiver (see People v Arias, 210 AD3d 593, 594 [1st Dept 2022],lv denied 39 NY3d 1109 [2023]). Nevertheless, given that defendant was inpossession of a weapon and ammunition during the underlying offense and was assessedby the Department of Probation as being in need of substance abuse treatment, theimposition of the condition was "reasonably necessary to insure that the defendant willlead a law-abiding life or to assist him to do so" (Penal Law § 65.10 [1];see People v Hale, 93 NY2d 454, 461 [1999]).
Defendant's valid waiver of the right to appeal also forecloses review of hisexcessive sentence claim. In any event, we perceive no basis for reducing the sentence.Concur—Manzanet-Daniels, J.P., Kennedy, Scarpulla, Shulman, Higgitt, JJ.