People v. Nevarez

People v Nevarez 2026 NY Slip Op 05864 October 8, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. The People of the State of New York, Respondent, v Luis R. Nevarez, Defendant-Appellant. Decided and Entered: October 08, 2026 Ind No. 72404/23|72404/23|Appeal No. 7193|Case No. 2024-03391| Before: Manzanet-Daniels, J.P., Kennedy, Friedman, Kapnick, Higgitt, JJ. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Shaina Watrous of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Oliver Lee of counsel), for respondent. [*1] Judgment, Supreme Court, Bronx County (Dineen A. Riviezzo, J.), rendered May 8, 2024, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him, as a second felony offender, to a term of 1½ to 3 years; and judgment of resentence, same court (Joseph A. McCormack, J.), rendered January 21, 2025, vacating the second felony offender adjudication and resentencing him to a jail term of 364 days, unanimously affirmed. Defendant's Second Amendment challenges to New York's gun licensing requirements that applicants demonstrate "good moral character" (Penal Law § 400.00[1][b]) and that they have "not been convicted anywhere of a felony" (Penal Law § 400.00[1][c]) are unpreserved (see People v Cabrera, 41 NY3d 35, 42-51 [2023]), and we decline to review them in the interest of justice. As an alternative holding, while defendant has standing to assert these facial challenges notwithstanding that he never applied for a firearm license (see People v Johnson, — NY3d —, 2025 NY Slip Op 06528, *2 [2025], cert denied — US — [2026]), he fails to establish that his conviction is unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]; see People v D.H., 247 AD3d 475, 476 [1st Dept 2026], lv denied 45 NY3d 1037 [2026]; People v Rosavong, 245 AD3d 482, 482-483 [1st Dept 2026]). Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claims 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 Velazquez, 33 AD3d 352, 354 [1st Dept 2006], lv denied 7 NY3d 929 [2006]). In any event, counsel was not ineffective, as the claims had "little or no chance of success" (People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marks omitted]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 8, 2026