PEOPLE v. SANCHEZ (2024)

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered June 11, 2019, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender, to five years’ probation, unanimously affirmed.  Purported appeal from forfeiture agreement, unanimously dismissed, as taken from a nonappealable paper.

Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 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 combination of the court's colloquy and the detailed written waiver that defendant signed after consultation with counsel satisfied the requirements of a valid waiver.  This waiver forecloses review of defendant's excessive sentence claim.  Notwithstanding the waiver, we perceive no basis for reducing the sentence.

Defendant's challenge to his voluntary agreement to forfeit the $1,258 recovered from his person at the time of his arrest is not properly before this Court because the forfeiture was not part of the judgment of conviction (see People v. Abruzzese, 30 A.D.3d 219, 220, 816 N.Y.S.2d 464 [1st Dept. 2006], lv denied 7 N.Y.3d 784, 821 N.Y.S.2d 814, 854 N.E.2d 1278 [2006];  cf.  People v. Burgos, 129 A.D.3d 627, 13 N.Y.S.3d 350 [1st Dept. 2015], lv denied 26 N.Y.3d 1038, 22 N.Y.S.3d 168, 43 N.E.3d 378 [2015];  see generally Penal Law § 60.30).  The court did not order any forfeiture, whether at the time of the plea or sentencing.  Rather, the forfeiture was based on a voluntary settlement of a potential, separate civil proceeding.

Were we not dismissing this aspect of the appeal, we would affirm on the ground of defendant's valid waiver of his right to raise any appellate challenge to the forfeiture agreement (see Abruzzese, 30 A.D.3d at 220, 816 N.Y.S.2d 464).  In any event, defendant's claims are unpreserved (see Burgos, 129 A.D.3d at 628, 13 N.Y.S.3d 350), and we decline to reach them in the interest of justice.