Issues: These six appeals raised a number of discrete issues, but all presented the
common question of whether, in light of the US Supreme Court’s decision in New
York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022), New York’s criminal
prohibition on the unlicensed carry of a loaded firearm is unconstititutional, and
whether that question was reviewable on appeal in the absence of a specific objection.

The Preservation Holding: The Court held that it did not have the power to review
the constitutionality of New York’s criminalization of the unlicensed carry of a
loaded firearm.

CAL observes: The preservation ruling reflects the Court’s perception of its role as
New York’s Court of last resort: confronted with a novel question of constitutional
law affecting thousands of criminal convictions and the power to resolve it, six of
seven judges decided that the question was better left unanswered.
The Court has often cited the rule, as Judge Halligan does in her opinion here, that its
jurisdiction is limited by Constitution and statute to “questions of law,” and that,
“absent certain limited exceptions,” a question of law is presented only the claim was
first raised in the trial court. What you won’t find in the Court’s decisions is an
acknowledgment that the Court has the power to define what amounts to a question
of law, and the sole power to create exceptions to that rule. It has exercised that
power widely, creating exceptions for, among others, mode of proceedings errors,
People v. Ahmed, 66 N.Y.2d 307 (1985), New York State right-to-counsel violations,
People v. McLean, 15 N.Y.3d 117, 121 (2010), and illegal-sentence errors. People v.
Samms, 95 N.Y.2d 52 (2000), and has regularly narrowed, broadened, and redefined
those rules. Compare, People v. Parker, 32 N.Y.3d 49, 62 (2018)(no matter how strongly
the record suggested that counsel may have been given notice of a jury note, a mode
of proceedings error was presented absent on-the-record evidence of disclosure, and
reconstruction was not a permissible remedy to determine whether counsel had been
given notice), with People v. Myers, 33 N.Y.3d 1018 (2019)(reconstruction was an
appropriate remedy to determine whether a jury note was a request for further
instruction or information).

Because the Court has the power to define what constitutes a question of law, and the
power to define exceptions to the contemporaneous-objection rule, it is the Court,
and not the Constitution or CPL §470.05(2), that largely defines the Court’s scope of
review.

It is in that context that the Court’s ruling on whether to recognize a futility exception
to the preservation rule in the Second-Amendment appeals should be considered.
The Court’s prior precedents presented it with a choice: reach the merits of the
Second-Amendment claims in the six appeals on the theory that preservation was
excused because the law in New York was squarely against any challenge to New
York’s Penal Law handgun possession statutes at the time these men were tried and
convicted; or find the error unpreserved, deferring resolution of the Second-
Amendment claims, and similar claims made by thousands of other New Yorkers for
another day.

There were reasonable arguments to be made on both sides of the issue: it took Judge
Halligan 4000 words to explain why the claim was unreviewable, and Judge Rivera
another 2500 words to make the case for reviewability. That six judges of the Court
chose to limit review—i.e., narrow its power—is reflective of what has been a timid
court, cautiously avoiding difficult questions rather than embracing them, particularly
when exercising its jurisdiction over criminal cases.

Whether there is anything left of the futility exception after Cabrera remains to be
seen, as does whether the Court will reverse it’s course of taking every opportunity to
dodge important issues in criminal cases as the Wilson Court comes into its own.

The non-preservation issues: David’s Second-Amendment issue: Unlike the Second-Amendment issues in Pastrana,
Rivera, Telfair, Cabrera, & Garcia, which the Court declined to address as unpreserved,
the Court rejected David’s Second-Amendment argument after an in depth review, in
part because David had argued the error qualified as a mode-of-proceedings error
exempt from the preservation requirement. David had argued that Penal Law §
265.03 (3) (and presumably all of NY’s weapon-possession criminal statutes) were
unconstitutional in violation of due process because they shifted the burden of
production on licensure to the defendant. The Court ultimately concluded that the
claim was unpreserved, but partially addressed the merits as well.

CAL observes: The Court read the licensure exemption as a “proviso” that may be
raised by the accused as a bar to prosecution, and not an element of weapon
possession. Making a distinction that is hard to unpack, the Court held that, while this
allocation was permissible pre-Bruen, it was problematic post-Bruen. In reaching that
conclusion, the grappled with/distinguished a decision from the Supreme Judicial
Court of Massachusetts, that struck down an affirmative licensure defense as violating
due process because lack of licensure was an essential element of the crime under
Bruen. Commonwealth v. Guardado, 491 Mass. 666, 667 (Mass 2023). The Court
distinguished NY’s scheme, because it did not put the burden of persuasion on the
defendant but rather the burden of production. In so ruling, the Court offered that it
was not deciding “whether shifting the burden of production to the defendant could
amount to a due process violation” - simply that, since the burden of persuasion was
not shifted, there was no MOP error---yet another preservation dodge, leaving the
courts and litigants to decipher whether a preserved claim would succeed.

Pastrana’s other holdings: The Court rejected Pastrana’s claims that (1) a roadblock
stop on a bridge leaving Manhattan and entering the Bronx following the Puerto
Rican Day parade satisfied the standard for a reasonable search and seizure under the
Fourth Amendment, articulated in Brown v. Texas, 443 U.S. 47 (1979), when there was
no evidence that it was authorized by supervisory (non-field) officers or that the date
and location of the road-block was reasonably selected to achieve the aims of law
enforcement; and (2) the warrantless search of Mr. Pastrana’s car and its locked glove
box was unlawful because Penal Law § 222.05(3) prohibits courts from determining
reasonable cause to believe a crime has been committed based solely on the odor of
cannabis or presence of cannabis in now-lawful amounts.

CAL observes: Over a dissent from Judge Halligan (joined by Judge Wilson), the
Court found that the roadblock was constitutionally reasonable. Mischaracterizing
Pastrana’s argument as “essentially a challenge to ... credibility,” Judge Troutman
rested the majority opinion on reasonable inferences rather than testimony or other
evidence. By Judge Troutman’s reckoning, the fact that the roadblock took place on
the day of the Puerto Rican Day period led to the “reasonable inference” that it was
chosen for that date and time because of the large volume of traffic crossing the
bridge (as though there were a traffic shortage in NYC on other dates and times and
at other places), and it was reasonable to assume that the roadblock had been
authorized by supervisory personnel because there was no testimony that it wasn’t.
Judge Halligan would have held that the record did not adequately establish that the
selection of the checkpoint’s particular date and location would be effective in serving
that objective, or that the checkpoint was properly authorized. It is rumored that Mr.

Pastrana has filed a cert petition on the roadblock issue.

Judge Troutman also rejected Mr. Pastrana’s claim that the search of his car and its
locked glove compartment were unlawful under the Marijuana Revenue and Taxation
Acts provisions limiting searches based solely on the odor of cannabis. Judge
Troutman framed Mr. Pastrana’s argument as one seeking retroactive application of
the MRTA, which was not enacted until after the date of his conviction. This was not
Mr. Pastrana’s argument, which was based on the plain language of Penal Law
§ 222.05(3), requiring the provision’s application in any criminal proceeding. By CPL
definition, the appeal of a criminal conviction in the Appellate Division is a criminal
proceeding. The Court did reach the merits of Pastrana’s claim in a footnote,
declining to apply the statutory language, finding cryptically that, because the CPL
contains “different provisions” for criminal courts and intermediate appellate courts,
an appeal as of right is not a criminal proceeding. Judicial legitimacy suffers when a
court of last resort rejects a primary argument raised in a footnote, a sure sign that the
Court wanted to uphold the search, but could not find a reasoned basis in the law.

If any hope can be extracted from Pastrana’s MRTA disposition, it is from Judge
Halligan’s footnote 1, describing the issue of whether Penal Law § 222.05(3) applies
to a post-enactment suppression hearing as a “closer question in light of the statutory
text.” Even Judge Troutman’s muddled footnote would not appear to bar application
of § 220.05(3) to post-enactment suppression hearings.

Telfair’s other holding: The Court found that it was reversible error to admit evidence
that Telfair had provided explanations for prior instances of unlawful weapon
possession years earlier that were similar to the explanation provided upon his arrest
in the current case, and error to allow the prosecutor to comment on those
explanations in summation.

CAL observes: Telfair was charged with unlawful weapon possession after a handgun
was recovered from his truck’s center console during an inventory search. The
prosecution expected that Telfair would claim at trial that, unbeknownst to him,
someone else had placed the gun in the center console. The prosecution sought to
introduce two prior incidents of gun possession where Telfair had claimed he
unwittingly possessed weapons that were packed by others. The prosecution
contended that the two prior incidents were relevant to prove knowledge or an
absence of mistake, recognized Molineux exceptions.

Over a dissent by Judge Cannataro (joined by Garcia & Singas), in an opinion written
by Judge Halligan, the court found that evidence of the prior incidents was not
admissible to prove that Telfair knew that the guns in question were in his vehicle in
this case. That Telfair unknowingly possessed other guns in two completely different
circumstances years earlier could not have put him on notice that there might have
been guns in his truck this time. Judge Halligan rejected the dissent’s suggestion that
the law of probabilities meant defendant’s history of repeatedly transporting firearms
outside the jurisdictions in which they were licensed, as well as the similarity of his
excuses when caught, refuted his defense here. Judge Halligan reasoned that, where
the Court permitted Molineux evidence to prove a subjective element of a crime or
rebut a defense as to an intent element, the prior acts were proximate in time and
“quite similar” to the alleged crime. Judge Halligan correctly recognized that the
dissent’s reasoning was pure propensity: the fact that Telfair had previously possessed
a weapon years earlier made it more likely that he possessed this weapon.

For Cabrera’s holding on handcuffing and custodial interrogation, see separate
analysis.