People v. Gulley

2025 NY Slip Op 00923

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 2025
• Docket: Ind. No. 1304/21 Appeal No. 3698 Case No. 2023-00979
• Status: Published

Opinion

People v Gulley (2025 NY Slip Op 00923)

People v Gulley

2025 NY Slip Op 00923

Decided on February 18, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 18, 2025
Before: Kern, J.P., Moulton, Kapnick, Gesmer, Pitt-Burke, JJ.

Ind. No. 1304/21 Appeal No. 3698 Case No. 2023-00979

[*1]The People of the State of New York, Respondent,

v

Keon Gulley, Defendant-Appellant.

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

Darcel D. Clark, District Attorney, Bronx (Lindsey Richards of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Steven J. Hornstein, J.), rendered February 16, 2023, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to five years of probation, unanimously affirmed.

Defendant validly waived his right to appeal. The totality of the circumstances, including the court's oral colloquy, which sufficiently distinguished the right to appeal from those trial rights automatically forfeited by a guilty plea, fully explained the appellate rights defendant was giving up, and detailed the claims that survived, taken together with the detailed written waiver, established that the waiver was knowing, 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 forecloses review of defendant's Second Amendment claim premised on New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]) (see People v Johnson, 225 AD3d 453, 453 [1st Dept 2024], lv granted 42 NY3d 939 [2024]).

Even if the appeal waiver were invalid, defendant failed to preserve his Second Amendment claim (People v Cabrera, 41 NY3d 35, 42-51 [2023]; Johnson, 225 AD3d at 455), and we decline to consider it in the interest of justice. As an alternative holding, we find that he lacks standing to assert his Second Amendment challenge (see People v Liriano, 226 AD3d 520, 521 [1st Dept 2024], lv denied 41 NY3d 1019 [2024]), and that he failed to establish that his conviction is unconstitutional (id.).

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim 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]). In any event, "[t]here can be no denial of effective assistance . . . arising from counsel's failure to make a motion or argument that has little or no chance of success" (People v Caban, 5 NY3d 143, 152 [2005]).

Defendant's valid waiver of appeal also forecloses review of his excessive sentence claim (see Liriano, 226 AD3d 520). In any event, we perceive no basis for reducing the sentence. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 18, 2025