PEOPLE v. SANTIAGO (2025)

Judgment, Supreme Court, New York County (Dineen Riviezzo, J.), rendered March 3, 2023, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree and robbery in the second degree, and sentencing him to a prison term of 31/212 year followed by 5 years of post-release supervision, 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.

Defendant validly waived his right to appeal under the “totality of the circumstances” (People v. Thomas, 34 N.Y.3d 545, 559, 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]).  Although neither the oral colloquy nor the written waiver advised defendant of his right to counsel on appeal, the court “did not imply that by waiving appeal, defendant would forfeit his right to appellate counsel for claims that survived the waiver” (People v. Yizar, 240 A.D.3d 416, 416, 235 N.Y.S.3d 47 [1st Dept. 2025];  see People v. Wood, 239 A.D.3d 484, 484, 233 N.Y.S.3d 57 [1st Dept. 2025];  People v. Diallo, 232 A.D.3d 427, 427, 220 N.Y.S.3d 288 [1st Dept. 2024], lv denied 43 N.Y.3d 930, 229 N.Y.S.3d 79, 254 N.E.3d 623 [2025]).  This valid waiver in turn forecloses review of defendant's excessive sentencing claim (see People v. Hunt, 225 A.D.3d 501, 501, 205 N.Y.S.3d 384 [1st Dept. 2024], lv denied 42 N.Y.3d 927, 216 N.Y.S.3d 97, 240 N.E.3d 816 [2024]).  In any event, we perceive no basis for reducing the sentence.

Based on our own interest of justice powers, we vacate the 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.