PEOPLE v. NUNEZ (2023)

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 N.Y.3d 545, 567, 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]).  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 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [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 A.D.3d 434, 135 N.Y.S.3d 641 [1st Dept. 2021]).  We note that the People do not oppose this relief.