PEOPLE v. JOHNSON (2024)

Judgments, Supreme Court, New York County (Curtis J. Farber, J.), rendered January 4, 2021, convicting defendant, upon his pleas of guilty, of two counts of robbery in the second degree, and sentencing him to an aggregate term of four years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharges and fees imposed at sentencing, and otherwise affirmed.

The superior court information (SCI) was not jurisdictionally defective.  Defendant argues that because the offense date stated in the SCI and to which he allocuted (March 1, 2020) differed from that stated in the initial felony complaint and the waiver of indictment (January 21, 2020), the SCI charged him with an offense that was different from that charged in the felony complaint and held for grand jury action (see CPL 195.20;  People v. Milton, 21 N.Y.3d 133, 136, 967 N.Y.S.2d 680, 989 N.E.2d 962 [2013]).  We find that the discrepancy in the offense dates did not render the SCI jurisdictionally deficient.  The offense dates constituted non-elemental factual information, and defendant failed to show that he lacked notice of the charges for which he was waiving prosecution by indictment or that the SCI clearly charged a different crime than that alleged in the felony complaint (see People v. Thomas, 34 N.Y.3d 545, 569–570, 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];  see also People v. Walley, 36 N.Y.3d 967, 968, 137 N.Y.S.3d 812, 162 N.E.3d 101 [2020];  People v. Jackson, 215 A.D.3d 461, 461, 187 N.Y.S.3d 26 [1st Dept. 2023], lv denied 39 N.Y.3d 1155, 190 N.Y.S.3d 711, 211 N.E.3d 1164 [2023]).  Rather, the errant date in the SCI appears to be the product of human error, as there were “no other surrounding facts which point to a different crime or offense” (People v. Stuart, 209 A.D.3d 1044, 1045, 177 N.Y.S.3d 328 [2d Dept. 2022], lv denied 39 N.Y.3d 1114, 186 N.Y.S.3d 844, 208 N.E.3d 72 [2023]).  Because defendant failed to raise a jurisdictional defect, his challenge to the SCI and conviction thereunder is precluded by his valid waiver of the right to appeal, forfeited by his guilty plea, and unpreserved (see Thomas, 34 N.Y.3d at 367–369, 122 N.Y.S.3d 226, 144 N.E.3d 970).

Defendant's excessive sentence claim is foreclosed by his valid waiver of the right to appeal.  In any event, we perceive no basis for reducing the sentence.

Based on our own interest of justice powers, we vacate the surcharges 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.