PEOPLE v. NAZARIOORTIZ (2023)

Judgment of conviction (Laurence E. Busching, J.), rendered September 19, 2018, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the mandatory surcharge and crime assistance fee, and otherwise affirmed.

Defendant's claim that his guilty plea to attempted petit larceny (see Penal Law §§ 110.00, 155.25) was invalid because he was not informed of the duration of the conditional discharge is unpreserved (see People v Torres, 37 NY3d 256, 269 [2021]; brief for defendant-appellant in Torres, supra, available at 2020 WL 10965076, * 29; People v Bush, 38 NY3d 66 [2022]), and we decline to review it in the interest of justice. As an alternative holding, we find that even if defendant's plea was defective, his remedy would be to vacate the plea. However, defendant does not request that relief, but instead seeks dismissal of the accusatory instrument, and he expressly asks this Court to affirm his conviction if it does not grant dismissal. Since it cannot be said that no penological purpose would be served by reinstating the serious charges contained in the felony complaint (see People v Conceicao, 26 NY3d 375, 385 n), dismissal is not warranted and we therefore affirm on this basis as well.

Based on our own interest of justice powers, and in the absence of opposition, we vacate the surcharge and fees imposed at sentencing (see People v Chirinos, 190 AD3d 434 [2021]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.