People v. Nunez

People v Nunez (2023 NY Slip Op 05449)

People v Nunez

2023 NY Slip Op 05449

Decided on October 26, 2023

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: October 26, 2023
Before: Webber, J.P., Moulton, González, Kennedy, JJ.
Ind No. 181/19 Appeal No. 911 Case No. 2020-01199

Twyla Carter, The Legal Aid Society, New York (Clara Hammond-Oakley of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Oliver Lee of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Steven Hornstein, J.), rendered December 12, 2019, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him to 5 years' probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed on defendant at sentencing, and otherwise affirmed.

Defendant made a valid waiver of his right to appeal, which forecloses review of his excessive sentence claim. The court's colloquy tracked the model colloquy, which has been endorsed by the Court of Appeals (see People v Thomas, 34 NY3d 545, 567 [2019], cert denied 589 US __, 140 S Ct 2634 [2020]). The court properly explained the nature of the right to appeal (including the right to counsel on appeal), clarified that certain claims survive the waiver, and distinguished between the trial rights automatically waived by pleading guilty and the waiver of the right to appeal as a condition of the particular plea agreement. It is not dispositive that the court conducted this colloquy only after defendant's allocution (see e.g. People v Bryant, 28 NY3d 1094, 1096 [2016]).

In any event, we perceive no basis for reducing the sentence.

Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing (see People v Chirinos, 190 AD3d 434 [1st Dept 2021]). We note that the People do not oppose this relief.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 26, 2023