| People v Alvarez |
| 2024 NY Slip Op 06662 [233 AD3d 619] |
| December 31, 2024 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jacob Alvarez, Appellant. |
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Abigail Everett ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Kate Triffon of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (George Villegas, J., at plea; Timothy W.Lewis, J., at sentencing), rendered September 19, 2022, convicting defendant, upon hisplea of guilty, of attempted criminal possession of a weapon in the second degree, andsentencing him to five years' probation, unanimously modified, on the law and as amatter of discretion in the interest of justice, to the extent of striking the condition ofprobation prohibiting defendant from using or entering any Metropolitan TransportationAuthority subway, train, bus, or other conveyance or facility for a period of up to threeyears, and vacating the surcharge and fees imposed at sentencing, and otherwiseaffirmed.
Defendant made a valid waiver of the right to appeal (see People v Thomas, 34 NY3d545 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]; People v Bryant, 28 NY3d1094 [2016]), which forecloses his claim that his sentence is excessive. In any event,we perceive no basis for reducing the sentence.
Defendant's valid waiver of his right to appeal also forecloses review of his SecondAmendment challenge (seePeople v Johnson, 225 AD3d 453, 453-454 [1st Dept 2024], lv granted42 NY3d 939 [2024]). In any event, his claim is unpreserved, and we decline to review itin the interest of justice (Peoplev Jackson, 225 AD3d 547, 548 [1st Dept 2024], lv denied 41 NY3d1002 [2024]). As an alternative holding, we find that defendant has failed to establishthat he has standing to challenge Penal Law § 265.01 (1), or that the statuteis unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen(597 US 1 [2022]) (see People v Jackson, 225 AD3d at 548).
The court improperly imposed, as a condition of probation, a requirement thatdefendant "[r]efrain from using or entering any Metropolitan Transportation Authoritysubway, train, bus, or other conveyance or facility for a period of up to three years."Defendant did not commit the instant crime, or have a history of misconduct, on publictransportation. Accordingly, the prohibition from using or entering any publictransportation conveyance or facility was not reasonably related to defendant'srehabilitation, or necessary to ensure that he will lead a law-abiding life (see People v Arias, 210 AD3d593, 594 [1st Dept 2022], lv denied 39 NY3d 1109 [2023]; People v Dranchuk, 203 AD3d741, 742 [2d Dept 2022]). Because this issue implicates the legality of the sentenceimposed, it survives defendant's waiver of the right to appeal and does not requirepreservation for appellate review (see People v Hakes, 32 NY3d 624, 628 n 3 [2018]; People v Velardo, 228 AD3d520, 521 [1st Dept 2024]).
Based on our own interest of justice powers, we vacate the surcharge and feesimposed on defendant at sentencing (see People v Chirinos, 190 AD3d 434, 435 [1st Dept2021]). We note that the People do not oppose this relief. Concur—Webber, J.P.,Moulton, Friedman, Mendez, Shulman, JJ.