PEOPLE v. S.J., Defendant–Appellant. (2024)

Judgments, Supreme Court, New York County (Ellen N. Biben, J.), rendered October 11, 2022, as amended October 20, 2023 and November 28, 2023, convicting defendant, upon his pleas of guilty, of criminal possession of a weapon in the second degree under indictment No. 1491/21, rape in the first degree under indictment No. 1987/21, and gang assault in the second degree and assault in the second degree under Superior Court Information (SCI) No. 72001/22, adjudicating him a youthful offender on the convictions under indictment No. 1987/21 and SCI No. 72001/22, and sentencing him to concurrent terms of 1 to 3 years on each of those convictions and 31/212 years, followed by 5 years of postrelease supervision, on the conviction under indictment No. 1491/21, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed at sentencing under indictment No. 1491/21, and otherwise affirmed.

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];  People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016]).  The court's oral colloquy with defendant, combined with the written waiver signed by defendant after consultation with counsel, satisfied the requirements of a valid waiver.  The waiver forecloses review of defendant's challenge to the denial of youthful offender treatment (see People v. Pacherille, 25 N.Y.3d 1021, 1023–1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015]) and his excessive sentence claim with respect to the weapon possession conviction under indictment No. 1491/21. In any event, we find that the court providently exercised its discretion in denying youthful offender treatment, given defendant's arrest for grand larceny in the fourth degree while awaiting sentencing, despite the plea court's warning that defendant could be denied youthful offender status if he were arrested for another crime.  We also perceive no basis for reducing the five-year period of postrelease supervision.

Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing under indictment No. 1491/21 (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.