People v DeJesus, 2024 NY Slip Op 06663 [233 AD3d 621]

December 31, 2024

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Jeremias DeJesus, Appellant.

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered April 28, 2023, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree, and sentencing him to three years of probation, unanimously affirmed.

Defendant validly waived his right to appeal ( see People v Thomas , 34 NY3d 545 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]), which forecloses review of his Second Amendment claim ( see People v Johnson , 225 AD3d 453 [1st Dept 2024], lv granted 42 NY3d 939 [2024]). Regardless of the waiver, defendant’s claim is unpreserved ( see People v Cabrera , 41 NY3d 35 , 42 [2023]), and we decline to review it in the interest of justice. In any event, defendant lacks standing to raise his Second Amendment claim because he did not apply for a gun license ( see People v Johnson , 225 AD3d at 454-455). As an alternative holding, we reject his Second Amendment claim on the merits ( see id. at 455).

Additionally, defendant’s claim that his counsel was ineffective for failing to move to dismiss the indictment on Second Amendment grounds 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 AD3d 513 , 514 [1st Dept 2024], lv denied 41 NY3d 1018 [2024]). Concur—Webber, J.P., Moulton, Friedman, Mendez, Shulman, JJ..