PEOPLE v. RIVAS (2025)

Judgment, Supreme Court, New York County (Diane Kiesel, J.), rendered November 16, 2021, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him to a jail term of 364 days, 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.

Given the absence of warnings under (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969]) or any other basis for finding voluntariness, defendant would be entitled to have his plea vacated.  However, he does not request that relief, but instead seeks dismissal of the indictment, and he expressly asks this Court to affirm the judgment if it does not grant that remedy.  Because, under all the circumstances, we do not find dismissal to be appropriate, we affirm, except to the extent indicated (see e.g. People v. Teron, 139 A.D.3d 450, 29 N.Y.S.3d 175 [1st Dept. 2016]).

Based on our own interest of justice powers, we vacate the surcharge and fees imposed 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.