PEOPLE v. SAUL (2023)

Judgment, Supreme Court, Bronx County (Margaret L. Clancy, J.), rendered January 17, 2020, convicting defendant, upon his plea of guilty, of burglary in the second degree as a sexually motivated felony, burglary in the second degree, and public lewdness, adjudicating him a youthful offender, sentencing him to concurrent terms of five years of probation on the burglary counts and a conditional discharge on the public lewdness count, and ordering that he pay restitution in the amount of $1,500, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the mandatory surcharge and crime victim assistance fee, and otherwise affirmed.

Defendant made a valid waiver of his right to appeal, and we reject his challenges to the validity of the waiver (see People v. Thomas, 34 N.Y.3d 545, 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]).  This waiver precludes review of his claims regarding the restitution order (see People v. Pawaroo, 210 A.D.3d 440, 440, 177 N.Y.S.3d 568 [1st Dept. 2022], lv denied 39 N.Y.3d 1079, 184 N.Y.S.3d 276, 204 N.E.3d 1058 [2023];  People v. Marini, 165 A.D.3d 445, 446, 85 N.Y.S.3d 419 [1st Dept. 2018], lv denied 32 N.Y.3d 1175, 97 N.Y.S.3d 589, 121 N.E.3d 216 [2019]).  Furthermore, regardless of whether defendant validly waived his right to appeal, defendant has not preserved his challenges to the restitution award (see e. g. People v. Paul, 159 A.D.3d 657, 658, 73 N.Y.S.3d 551 [1st Dept. 2018], lv denied 31 N.Y.3d 1120, 81 N.Y.S.3d 380, 106 N.E.3d 763 [2018]), and we decline to review them in the interest of justice.

Defendant's valid waiver of his right to appeal forecloses review of his excessive sentence claim (see People v. Gonzalez, 178 A.D.3d 440, 111 N.Y.S.3d 171 [1st Dept. 2019], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 292, 147 N.E.3d 562 [2020]).  In any event, we perceive no basis for reducing the sentence.

Based on our own interest of justice powers, we vacate the mandatory surcharge and crime victim assistance fee imposed at sentencing (see People v. Chirinos, 190 A.D.3d 434, 135 N.Y.S.3d 641 [1st Dept. 2021]).  We note that People do not oppose this relief.