Supreme Court, Queens County, September 14, 2022

The Legal Aid Society, Queens (Jessica Bettencourt of counsel), for defendant.

Melinda Katz, District Attorney, Queens (Yong Kim of counsel), for plaintiff.

Summary of the court's decision: The defendant's motion to withdraw his guilty plea pursuant to CPL 220.60 (3) is denied.

The defendant moves to withdraw his plea of guilty pursuant to CPL 220.60 (3) and dismiss the charges of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]) and criminal possession of a firearm (Penal Law § 265.01-b [1]) on the grounds that New York State Rifle & Pistol Assn., Inc. v Bruen (597 US —, 142 S Ct 2111 [June 23, 2022]) renders the indictment defective within the meaning of CPL 210.25 pursuant to CPL 210.20 (1) (a). The motion to withdraw the defendant's guilty plea and dismiss the above-mentioned charges is denied.{**76 Misc 3d at 999}

On December 3, 2021, the defendant was indicted on one count of each of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]), criminal [*2]possession of a firearm (Penal Law § 265.01-b [1]), and reckless endangerment in the first degree (Penal Law § 120.25). On June 16, 2022, the defendant entered into a plea of guilty to criminal possession of a firearm (Penal Law § 265.01-b [1]) with a promised sentence of 1� to 3 years in prison. On June 23, 2022, the Supreme Court of the United States issued Bruen.

On July 26, 2022, the date of sentencing, the defendant filed the instant motion. On August 16, 2022, the People filed a response, opposing the defendant's motion in its entirety. The defendant filed a reply on August 29, 2022.

Pursuant to Executive Law § 71 and CPLR 1012 (b), the Office of the Attorney General was notified of this constitutional challenge. The office has advised the court, via letter dated August 16, 2022, that they will not be intervening in this challenge at this time and no adverse inference should be drawn from their decision.

Accordingly, this decision is based on the defendant's motion, the People's response, the defendant's reply, and all court documents contained in the court file.

The defendant argues that his plea was not made knowingly and intelligently, as he pleaded guilty to a statute declared unconstitutional by Bruen, which the defendant could not have anticipated. The defendant argues that his failure to apply for a firearm license or his prior felony record is of no impediment to a constitutional challenge under a historical tradition analysis.

The People argue that Bruen did not render unconstitutional New York's entire licensing scheme, any offenses of the Penal Law criminalizing unlicensed weapon possession, nor the presumption of unlawful intent (Penal Law § 265.15 [4]). Rather, Bruen is limited to holding unconstitutional only a specific provision of the licensing scheme requiring that an individual demonstrate a special need for a firearm license. The People further argue that the defendant lacks standing, as the defendant neither applied for a license nor has demonstrated his eligibility to obtain a license in light of his prior felony convictions.

[1] A guilty plea is valid and enforceable so long as the plea was entered "voluntarily, knowingly and intelligently" (People v{**76 Misc 3d at 1000} Brown, 14 NY3d 113, 116 [2010], citing People v Hill, 9 NY3d 189, 191 [2007]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]). At any time before sentence is imposed, a defendant may move to withdraw a guilty plea (CPL 220.60 [3]). A motion to withdraw a guilty plea falls within the sound discretion of the court (id.; People v Alexander, 97 NY2d 482, 485 [2002]). Generally, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" (People v De Jesus, 199 AD2d 529, 530 [2d Dept 1993]). The defendant here has raised none of these claims as to the circumstances of his plea. The defendant's only argument for withdrawal is that the offense he pleaded guilty to was rendered unconstitutional by Bruen and therefore he could not enter the plea knowingly and intelligently.

It is well settled that there is a strong presumption that a statute duly enacted by the legislature is constitutional, and before declaring a law unconstitutional, the invalidity of the law must be demonstrated beyond a reasonable doubt (People v Pagnotta, 25 NY2d 333, 337 [1969]). Indeed, the court is unaware of, nor has the defense presented, any case law in which a New York court has found any firearm possession charge in Penal Law article 265 unconstitutional pursuant to Bruen. Rather, since the issuance of Bruen, several courts of coordinate jurisdiction have denied motions to dismiss, finding that Bruen does not preclude the prosecution of unlawful possession of a firearm, where, as here, a defendant did not previously apply for, and [*3]was denied, a license (People v Williams, 76 Misc 3d 925 [Sup Ct, Kings County 2022]; see People v Rodriguez, 76 Misc 3d 494 [Sup Ct, NY County 2022]; People v Zampino, Sup Ct, Queens County, Aug. 1, 2022, Wang, J., ind. No. 71031/2021; People v Duszka, Sup Ct, Queens County, July 27, 2022, Yavinsky, J., ind. No. 70499/2021; People v Brown, 2022 NY Slip Op 32290[U] [Sup Ct, Bronx County, July 15, 2022, Fabrizio, J.]; People v Monroe, Sup Ct, Bronx County, July 14, 2022, Clancy, J., ind. No. 232/2021). Notably, these cases were decided pre-conviction. Here, the defendant has entered into a plea of guilty to criminal possession of a firearm (Penal Law § 265.01-b [1]) and is now awaiting sentence.

The court finds that the issuance of Bruen subsequent to the defendant's guilty plea, irrespective of the merits of the constitutional challenge, does not have any effect on the plea's validity and enforceability. "[A]bsent misrepresentation or {**76 Misc 3d at 1001}other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise" (People v Edwards, 96 NY2d 445, 452 [2001], citing Brady v United States, 397 US 742, 757 [1970]). In People v Edwards, the Court of Appeals considered the validity of a guilty plea to first degree murder, which was entered pursuant to a plea agreement in which the prosecution agreed to withdraw notice of intent to seek the death penalty, even though after entry of the plea, but before sentencing, the Court of Appeals found the plea provisions of the death penalty statute to be unconstitutional (Edwards at 448-449). The Court, relying upon Brady v United States, held that the plea was valid (id. at 452). The fact that the defendant did not anticipate the Court's subsequent decision in Matter of Hynes v Tomei (92 NY2d 613 [1998], cert denied 527 US 1015 [1999]) " '[did] not impugn the truth or reliability of his plea' " (Edwards at 452, citing Brady v United States, 397 US at 757).

Similarly, in People v Trank (58 AD3d 1076 [3d Dept 2009], lv denied 12 NY3d 860 [2009]), the Third Department upheld a defendant's guilty plea to attempted promoting prison contraband in the first degree for attempting to smuggle more than 19 grams of marijuana into a correctional facility, even though the Court of Appeals held in People v Finley (10 NY3d 647 [2008]), approximately six months after sentencing, that a small amount of marijuana, generally less than 25 grams, was not dangerous contraband (People v Trank, 58 AD3d at 1077). The Court found that the failure of the indictment to allege a quantity of marijuana did not constitute a jurisdictional defect and any supposed defect was waived by the defendant's knowing and voluntary guilty plea (id.). The Court stated, "defendant is bound by her choice to plead guilty, even though the crime charged would necessarily have been reduced post-Finley" (id.).

Here, the defendant is also bound by his choice to plead guilty where the voluntariness of the plea is not at issue. Even if the court agreed with the defendant that Bruen has rendered the offense of criminal possession of a firearm unconstitutional, this alone would not be grounds for withdrawing the defendant's guilty plea. The defendant fails to "suggest[ ] any misleading conduct by state agents or call[ ] into question defendant's guilt or the voluntariness of his plea"; therefore the defendant's {**76 Misc 3d at 1002}guilty plea stands as valid and enforceable (People v Griffin, 89 AD3d 1235, 1237 [3d Dept 2011]).

[2] The court also finds the defendant's reliance on Bruen to be misplaced. This court is persuaded by the several decisions from courts of coordinate jurisdiction and joins in holding that criminal possession of a firearm (Penal Law § 265.01-b [1]) is not unconstitutional under[*4]Bruen. In Bruen, the Supreme Court held that the denial of petitioners' applications for unrestricted licenses to carry a handgun in public, for failing to satisfy New York's proper cause standard, violated the Second and Fourteenth Amendments. Generally, to obtain a firearm license in New York, an applicant must demonstrate, among other things, that they are of good moral character, have no history of crime or mental illness, and are a person "concerning whom no good cause exists for the denial of the license" (Penal Law § 400.00 [1]). To specifically obtain an unrestricted license in which the license holder may have and carry a concealed firearm outside their home or place of business for self-defense, an applicant must also demonstrate "proper cause"—that is, "a special need for self-protection distinguishable from that of the general community" (Bruen, 597 US at —, 142 S Ct at 2123 [internal quotation marks omitted], citing Matter of Klenosky v New York City Police Dept., 75 AD2d 793, 793 [1st Dept 1980], affd 53 NY2d 685 [1981]; Penal Law § 400.00 [2] [f]). The petitioners, two law-abiding, adult citizens, applied for and were denied unrestricted licenses and instead granted restricted licenses, permitting them to carry a handgun outside the home for hunting and target shooting only (Bruen, 597 US at —, 142 S Ct at 2125). Applying the historical tradition standard set forth in District of Columbia v Heller (554 US 570 [2008]) and McDonald v Chicago (561 US 742 [2010]), the Court found that New York's proper cause standard was unconstitutional, as it prevented "law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms" (597 US at —, 142 S Ct at 2156).

Contrary to the defendant's position, Bruen did not invalidate any other provision of New York's licensing scheme or any of the offenses under the Penal Law criminalizing unlicensed possession of a firearm. The Court's holding was limited in scope, applying only to "may issue" licensing schemes, such as that in {**76 Misc 3d at 1003}New York. The Court made clear that "nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States' 'shall-issue' licensing regimes, under which 'a general desire for self-defense is sufficient to obtain a [permit]' " (597 US at — n 9, 142 S Ct at 2138 n 9). Justice Kavanaugh, in his concurring opinion, reiterated that "the Court's decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense" (597 US at —, 142 S Ct at 2161 [Kavanaugh, J., concurring]). Justice Kavanaugh further stated that "the Second Amendment allows a 'variety' of gun regulations," which include the "shall-issue" license regimes employed by the other 43 states (597 US at —, 142 S Ct at 2162). Justice Alito, in his concurring opinion, similarly emphasized that the Court's decision

"decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or [McDonald], about restrictions that may be imposed on the possession or carrying of guns" (597 US at —, 142 S Ct at 2157 [Alito, J., concurring]).

Thus, Bruen distinctly left intact a state's ability to impose a licensing scheme, as well as criminalize the possession of an unlicensed firearm. Here, the defendant was charged with, and has pleaded guilty to, criminal possession of an unlicensed firearm. Unlike the petitioners in Bruen, the defendant has failed to show that he ever applied for a license for the subject firearm, let alone an unrestricted license. The court notes that because of the defendant's prior felony record, New York State, under Heller and McDonald, would have constitutionally denied the defendant an unrestricted license to carry (Heller, 554 US at 626-627; McDonald, 561 US at 786). This is not a matter where, had the defendant applied for such a license, he would have been denied a license under a now unconstitutional provision. The defendant's application of Bruen to the instant matter is therefore even more tenuous.

Based on the foregoing, the court finds that the defendant has failed to set forth any valid grounds for the withdrawal of his plea of guilty to criminal possession of a firearm. [*5]Accordingly, the defendant's motion to withdraw his plea of guilty and dismiss the charges of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]) and criminal possession of a firearm (Penal Law § 265.01-b [1]) is denied.

{**76 Misc 3d at 1004}As requested by the defendant, the grand jury minutes are hereby marked as an exhibit and included in the court file for appeal purposes.