PEOPLE v. MALDONADO (2025)

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered April 4, 2023, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to five years of probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the mandatory surcharge and fees imposed on defendant at sentencing, and otherwise affirmed.

Defendant validly waived his right of appeal (see People v. Nunez, 220 A.D.3d 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]).  The court's colloquy tracked the model colloquy endorsed by the Court of Appeals in (People v. Thomas, 34 N.Y.3d 545, 567, 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]).  Additionally, defendant executed a written waiver, which he reviewed with counsel, that reiterated the court's explanation of the right of appeal (see People v. Walker, 206 A.D.3d 541, 168 N.Y.S.3d 820 [1st Dept. 2022], lv denied 38 N.Y.3d 1191, 176 N.Y.S.3d 221, 197 N.E.3d 501 [2022]).  Neither the execution of the written waiver at the beginning of the plea proceeding, nor the court's colloquy about the waiver after defendant's allocution, rendered the appeal waiver invalid (see People v. Jessamy, 237 A.D.3d 619, 619, 230 N.Y.S.3d 259 [1st Dept. 2025], lv denied 43 N.Y.3d 1046, 236 N.Y.S.3d 647, 263 N.E.3d 905 [2025]).

Defendant's valid waiver forecloses review of his Second Amendment claim.  In any event, defendant's claim that New York's ban on handgun possession by individuals under 21 years of age is also unpreserved because he failed to raise it in his motion to dismiss the indictment (see People v. Maldonado, 230 A.D.3d 1069, 1070, 217 N.Y.S.3d 81 [1st Dept. 2024], lv denied 42 N.Y.3d 1053, 225 N.Y.S.3d 653, 250 N.E.3d 664 [2024]), and we decline to review it in the interest of justice.

Furthermore, defendant's valid waiver of his right to appeal forecloses review of his excessive sentence claim.  In any event, we perceive no basis for reducing the sentence.

However, based on our interest of justice powers, we vacate the mandatory surcharge and fees imposed on defendant at sentencing (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.