PEOPLE v. CASSANOVA (2025)

Judgment, Supreme Court, Bronx County (Guy Mitchell, J., at suppression hearing;  Albert Lorenzo J., at plea and sentencing), rendered February 16, 2023, convicting defendant, upon his guilty plea, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of two years to be followed by two years of postrelease supervision, with the sentence to run consecutively to his sentence under a separate indictment, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed at sentencing, and otherwise affirmed.

An appeal waiver will generally be valid where, as here, in accepting the waiver, “[t]he court's colloquy tracked the model colloquy” (People v. Nunez, 220 A.D.3d 597, 597, 197 N.Y.S.3d 61 [1st Dept. 2023], lv denied 41 N.Y.3d 1004, 213 N.Y.S.3d 222, 236 N.E.3d 1240 [2024]).  That is, “[t]he court properly explained the nature of the right to appeal (including the right to counsel on appeal), clarified that certain claims survive the waiver, and distinguished between the trial rights automatically waived by pleading guilty and the waiver of the right to appeal as a condition of the particular plea agreement” (id. at 598, 197 N.Y.S.3d 61).  The record demonstrates that defendant had “a full appreciation of the consequences” of the waiver and that the waiver was voluntary under the “totality of the circumstances” (People v. Williams, 227 A.D.3d 480, 481, 211 N.Y.S.3d 48 [1st Dept. 2024] [internal quotation marks omitted], lv denied 42 N.Y.3d 1022, 221 N.Y.S.3d 484, 246 N.E.3d 927 [2024];  see People v. Castillo, 226 A.D.3d 573, 574, 207 N.Y.S.3d 525 [1st Dept. 2024], lv denied 41 N.Y.3d 1017, 214 N.Y.S.3d 306, 237 N.E.3d 1246 [2024]).

Thus, defendant's voluntary waiver of his right to appeal forecloses consideration of his Second Amendment claim as well as his claims that the court erred in denying his motion to suppress because the search of his car violated both the Marijuana Regulation and Taxation Act (see L 2021, ch 92;  Penal Law § 222.05[3]), and the state and federal constitutions (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019];  People v. Liriano, 226 A.D.3d 520, 209 N.Y.S.3d 30 [1st Dept. 2024], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 323, 237 N.E.3d 1263 [2024]).

Based on our own interest of justice powers, we vacate the mandatory surcharge and fee 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.