PEOPLE v. RIVADENEIRA (2019)

Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered November 18, 2016, convicting defendant, upon his plea of guilty, of rape in the first degree and attempted rape in the first degree, and sentencing him to an aggregate term of 25 years, unanimously modified, on the law, to the extent of reducing the amounts of the mandatory surcharge to $250 and the crime victim assistance fee to $20, respectively, and otherwise affirmed.

Defendant made a valid waiver of his right to appeal (see People v. Bryant, 28 N.Y.3d 1094, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ), which forecloses review of his claims that he was denied the right to counsel in connection with his decision whether to testify before the grand jury and that his sentence is excessive.

Regardless of whether defendant validly waived his right to appeal, his right to counsel claim relating to the grand jury proceeding falls within the category of claims requiring preservation (see People v. Garay, 25 N.Y.3d 62, 67, 7 N.Y.S.3d 254, 30 N.E.3d 145 [2015], cert denied 577 U.S. ––––, 136 S. Ct. 501, 193 L.Ed.2d 399 [2015] ), and we decline to review this unpreserved claim in the interest of justice.  As an alternative holding, we find that it was forfeited by defendant's guilty plea (see People v. Hansen, 95 N.Y.2d 227, 231, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ), and that it is unreviewable for lack of a sufficient record (see People v. McLean, 15 N.Y.3d 117, 119, 905 N.Y.S.2d 536, 931 N.E.2d 520 [2010];  People v. Kinchen, 60 N.Y.2d 772, 773–774, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983] ).

Furthermore, regardless of the validity of the appeal waiver, we perceive no basis for reducing the sentence.

However, because defendant committed these crimes before the effective dates of statutory amendments increasing the mandatory surcharge and crime victim assistance fees, his sentence is unlawful to the extent indicated.