Summary
This Appellate Division, First Department decision affirms the defendant's conviction and five-year probation sentence for attempted criminal possession of a weapon in the second degree following a guilty plea. The court holds that the defendant validly waived his right to appeal, which forecloses review of his Second Amendment challenge and excessive sentence claim. Even absent a valid waiver, the court finds the claim unpreserved and concludes the defendant lacks standing under New York State Rifle & Pistol Assn., Inc. v. Bruen. Claims of ineffective assistance of counsel are deferred to a post-conviction CPL 440.10 motion.
Topics
Practice areas
Questions Presented
- Whether Gulley's waiver of appeal was knowing, intelligent, and voluntary and therefore foreclosed review of his Second Amendment claim
- Whether Gulley had standing to assert a Second Amendment challenge
- Whether Gulley's claim of ineffective assistance of counsel is reviewable on direct appeal
- Whether Gulley's excessive‑sentence claim is foreclosed by his waiver of appeal
Holdings
- The waiver was knowing, intelligent, and voluntary; consequently, it foreclosed appellate review of the Second Amendment claim.
- Gulley lacks standing to assert the Second Amendment claim.
- The claim is unreviewable on direct appeal and must be raised in a CPL 440.10 motion.
- The waiver forecloses review of the excessive‑sentence claim and there is no basis to reduce the sentence.
Key quotations
“[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”
Factual background
Gulley entered a guilty plea to attempted criminal possession of a weapon, received a five‑year probation sentence, and executed a written waiver of his right to appeal that the trial court accepted as knowing, intelligent, and voluntary.
Procedural history
The defendant pleaded guilty to attempted criminal possession of a weapon in the second degree and was sentenced to five years of probation. He waived his right to appeal, and the Supreme Court, Bronx County entered judgment affirming the conviction. The Appellate Division reviewed the waiver and related claims.