PEOPLE v. GARDNER (2026)

Judgment, Supreme Court, Bronx County (Guy H. Mitchell, J.), rendered February 27, 2024, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him to a jail term of six months and 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 at sentencing, and otherwise affirmed.

The waiver of the right to appeal was invalid.  The plea court “never adequately explained the nature of the waiver, the rights the defendant would be waiving or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty” (People v. Castillo, 234 A.D.3d 557, 558, 225 N.Y.S.3d 235 [1st Dept. 2025], lv denied 43 N.Y.3d 1006, 234 N.Y.S.3d 814, 261 N.E.3d 949 [2025], quoting People v. Ramos, 122 A.D.3d 462, 464, 997 N.Y.S.2d 24 [1st Dept. 2014]).  “Instead, the court relied on defense counsel's confirmation that he told defendant about the waiver, which was not a substitute for the court conducting its own inquiry” (Castillo, 234 A.D.3d at 558, 225 N.Y.S.3d 235).  “The written waiver signed by defendant was no substitute for an on-the-record explanation of the nature of the right to appeal” (Ramos, 122 A.D.3d at 464, 997 N.Y.S.2d 24).  However, we perceive no basis to reduce the sentence.

The court providently imposed a condition of probation requiring defendant to “[c]onsent to a search, conducted by a Probation Officer ․ of his person, vehicle and place of abode ․ and seizure of any illegal drugs, drug paraphernalia, gun/firearm or other weapon or contraband found.”  This condition was “reasonably related to [defendant's] rehabilitation” given “the use of a firearm during the crime by an ․ accomplice” and defendant's juvenile delinquent adjudication for possessing a firearm (People v. L.P., 238 A.D.3d 570, 571, 232 N.Y.S.3d 25 [1st Dept. 2025], lv denied 43 N.Y.3d 1057, 239 N.Y.S.3d 103, 265 N.E.3d 1119 [2025]).

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]).