PEOPLE v. MOORE (2025)

Judgment, Supreme Court, New York County (Brendan Lantry, J., at plea;  Abraham L. Clott, J., at sentencing), rendered October 17, 2023, convicting defendant of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of six years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed on defendant at sentencing, and otherwise affirmed.

Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 559–560, 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. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]).  Although he initially agreed to plead guilty in exchange for the six-year prison term followed by three years of postrelease supervision, upon the People's realization — during the plea hearing itself — that the statutorily mandated term of postrelease supervision for a Class D second violent felony offender is five years (Penal Law § 70.45[2]), the People revised their offer accordingly.  The court then repeated this offer to defendant, including that the plea bargain was contingent on the waiver of defendant's right to appeal, and the court “elicit[ed] defendant's continuing consent to waive his right to appeal” by asking whether he still wished to plead guilty and waive his right to appeal and by further ensuring defendant's understanding that the postrelease supervision term was to be five years instead of three (People v. Johnson, 14 N.Y.3d 483, 487, 903 N.Y.S.2d 299, 929 N.E.2d 361 [2010]).  Indeed, defendant entered a guilty plea afterwards.  Additionally, to the extent that the oral colloquy may have been ambiguous, “any ambiguity was resolved by the written waiver” (People v. Ruperto, 200 A.D.3d 566, 567, 155 N.Y.S.3d 331 [1st Dept. 2021], lv denied 38 N.Y.3d 953, 165 N.Y.S.3d 446, 185 N.E.3d 967 [2022];  accord People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006];  People v. Diallo, 217 A.D.3d 459, 459, 190 N.Y.S.3d 356 [1st Dept. 2023], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 669, 217 N.E.3d 690 [2023];  People v. Galindo, 216 A.D.3d 550, 550, 189 N.Y.S.3d 197 [1st Dept. 2023], lv denied 40 N.Y.3d 996, 197 N.Y.S.3d 104, 219 N.E.3d 865 [2023]).  Accordingly, defendant's valid waiver of his right to appeal “forecloses review of his excessive sentence claim” (People v. Orenstein, 230 A.D.3d 1068, 1069, 219 N.Y.S.3d 30 [1st Dept. 2024]).

In any event, we perceive no basis for reducing defendant’ sentence.

Based on defendant's age at the time of the offense, his showing that the surcharge and fees “would work an unreasonable hardship on the defendant, his or her family, or any other person who is dependent on such defendant for financial support,” and in the interest of justice, we vacate the surcharge and fees imposed on defendant at sentencing (CPL 420.35[2–a][a],[c];  see People v. Chirinos, 190 A.D.3d 434, 435, 135 N.Y.S.3d 641 [1st Dept. 2021]).  We note that the People do not oppose this relief.