PEOPLE v. MARIN (2026)

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J., at plea;  Judith Lieb, J., at sentencing), rendered February 15, 2023, convicting defendant of attempted burglary in the second degree, and sentencing him to a term of three years, 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.

Under the totality of the circumstances, defendant's waiver of the right to appeal was invalid (see 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. 1302, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]).  The court's colloquy failed to advise defendant of the claims which would survive the waiver, and incorrectly informed him that if it found that he violated the terms of the plea, such finding could not be appealed (see People v. Cruz, 221 A.D.3d 465, 465, 198 N.Y.S.3d 57 [1st Dept. 2023];  see also People v. Patterson, 106 A.D.3d 757, 757, 964 N.Y.S.2d 233 [2d Dept. 2013], lv denied 21 N.Y.3d 1018, 971 N.Y.S.2d 501, 994 N.E.2d 397 [2013]).  Nevertheless, we find that the court providently exercised its discretion in denying defendant youthful offender status, and defendant has set forth no basis for this Court to substitute a youthful offender adjudication in the interest of justice (see People v. Roberts, 228 A.D.3d 488, 489, 211 N.Y.S.3d 80 [1st Dept. 2024], lv denied 42 N.Y.3d 1054, 225 N.Y.S.3d 658, 250 N.E.3d 669 [2024]).

Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing (see People v. Martinez, 231 A.D.3d 556, 557, 218 N.Y.S.3d 323 [1st Dept. 2024]).  We note that the People do not oppose this relief.