PEOPLE v. MARTINEZ (2024)

Judgments, Supreme Court, Bronx County (Joseph A. McCormack, J.), rendered June 7, 2023, as amended June 14, 2023, convicting defendant, upon his pleas of guilty, of attempted gang assault in the first degree, criminal possession of a controlled substance in the third degree, and conspiracy in the fourth degree, and sentencing him to an aggregate prison term of four years, followed by five years of postrelease supervision, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the mandatory surcharge and fees imposed at sentencing on the attempted gang assault conviction, and otherwise affirmed.

Defendant made a valid waiver of his right to appeal, foreclosing appellate review of his claim that his sentence is excessive (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]).  We perceive no basis for reducing the sentence.

Pursuant to our own interest of justice powers, we vacate the mandatory surcharge and fees imposed on defendant at sentencing on the attempted gang assault conviction, under indictment No. 363/19 (see People v. Coleman, 209 A.D.3d 501, 502, 177 N.Y.S.3d 5 [1st Dept. 2022], lv denied 39 N.Y.3d 1153, 190 N.Y.S.3d 689, 693, 211 N.E.3d 1142, 1146 [2023]).  We note that the People do not oppose this relief.