PEOPLE v. FELIX (2025)

Judgment, Supreme Court, Bronx County (Jeffrey Rosenblueth, J. at speedy trial motion;  Audrey E. Stone, J. at plea and sentencing), rendered September 27, 2023, convicting defendant 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 surcharge and fees imposed on defendant at sentencing, and otherwise affirmed.

Defendant validly waived his right of appeal, which tracked the model colloquy 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];  see People v. Nunez, 220 A.D.3d 597, 597-598, 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 properly separated the right to appeal from the trial rights defendant waived by pleading guilty “without lumping [the right of appeal] into the panoply of rights normally forfeited upon a guilty plea” (People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015]).  The written waiver “cured any ambiguity in the court's inquiry” (People v. Vaillent, 74 A.D.3d 409, 409-410, 900 N.Y.S.2d 872 [1st Dept. 2010], lv denied 15 N.Y.3d 896, 912 N.Y.S.2d 584, 938 N.E.2d 1019 [2010]).  Defendant's valid waiver forecloses review of his speedy trial claim (see People v. Person, 184 A.D.3d 447, 447, 126 N.Y.S.3d 14 [1st Dept. 2020], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 387, 152 N.E.3d 1189 [2020]) and his excessive sentence claim (see People v. Sanchez, 223 A.D.3d 482, 482, 203 N.Y.S.3d 280 [1st Dept. 2024], lv denied 41 N.Y.3d 1020, 214 N.Y.S.3d 307, 237 N.E.3d 1247 [2024]).

In any event, the 84-day delay caused by the People's inadvertent submission of the grand jury minutes to the incorrect court attorney was excludable because the delay was not based on the People's inaction (see People v. Harris, 82 N.Y.2d 409, 412, 604 N.Y.S.2d 918, 624 N.E.2d 1013 [1993]).  The People submitted the minutes on time to the email address provided to them by the court in a virtual chat, learning only on the next calendar call 84 days later when defendant's omnibus motion was calendared for decision that the email address was for the wrong court attorney.  Under the circumstances, “the People's filings ․ suggest ․ an intentional course of action” to timely file the grand jury minutes with the court for review.

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. Leggett, 219 A.D.3d 1253, 1253, 198 N.Y.S.3d 1 [1st Dept. 2023], lv denied 40 N.Y.3d 1081, 202 N.Y.S.3d 772, 225 N.E.3d 892 [2023]).

We note that the People do not oppose this relief.