PEOPLE v. GARCIA (2024)

Judgments, Supreme Court, Bronx County (Dineen Riviezzo, J.), rendered February 1, 2023, as amended January 17, 2024, convicting defendant, upon his pleas of guilty, of criminal possession of a firearm and attempted robbery in the first degree, and sentencing him, as a second felony offender, to a term of 11/212 to 3 years for criminal possession of a firearm, and, as a second violent felony offender, to a consecutive term of 7 years to be followed by five years of postrelease supervision for attempted robbery in the first degree, unanimously affirmed.

Defendant made a valid waiver of his right to appeal, foreclosing appellate review of his claims that his sentences are excessive and that the mandatory surcharge and fees imposed on him at sentencing on the criminal possession of a firearm conviction, under indictment No. 638/20, should be vacated in the interest of justice (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. Coleman, 209 A.D.3d 501, 501, 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];  People v. Count C., 206 A.D.3d 496, 168 N.Y.S.3d 320 [1st Dept. 2022], lv denied 38 N.Y.3d 1187, 176 N.Y.S.3d 211, 197 N.E.3d 491 [2022]).  As an alternative holding, defendant's claim that concurrent sentences are warranted under Penal Law § 70.25(2–b) is unpreserved where he failed to raise this claim before the sentencing court (see People v. Hamlet, 227 A.D.2d 203, 204, 642 N.Y.S.2d 254 [1st Dept. 1996], lv denied 88 N.Y.2d 1021, 651 N.Y.S.2d 20, 673 N.E.2d 1247 [1996];  see also People v. Dunbar, 183 A.D.3d 1263, 1265, 123 N.Y.S.3d 373 [4th Dept. 2020], lv denied 35 N.Y.3d 1044, 127 N.Y.S.3d 860, 151 N.E.3d 541 [2020]).  Were we to review this claim, we would find no basis for reducing or modifying the sentences.

We note that the uniform sentence and commitment form in indictment No. 638/20 was amended January 17, 2024 to correctly reflect that defendant was sentenced under that indictment as a second felony offender, rendering moot his claim that the form must be corrected.