PEOPLE v. SANTIAGO (2022)

Judgment, Supreme Court, Bronx County (George Villegas, J.), rendered April 24, 2018, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of two years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (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. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020]), which forecloses review of the harshness or excessiveness of his sentence. As an alternative holding, we find no basis for reducing the sentence, including the two-year term of post-release supervision.

Defendant's waiver of the right to appeal also precludes review of his argument that the mandatory surcharge and fees imposed should be vacated pursuant to CPL 420.35 (2-a) (see People v. Count C., 206 A.D.3d 496, 168 N.Y.S.3d 320 [1st Dept. 2022], citing People v. Montanez, 203 A.D.3d 755, 160 N.Y.S.3d 659 [2d Dept. 2022], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 395, 188 N.E.3d 593 [2022]). As an alternative holding, we find no basis to waive defendant's surcharge and fees in the interest of justice (see People v. Whitfield, 198 A.D.3d 446, 447, 152 N.Y.S.3d 571 [1st Dept. 2021], lv denied 37 N.Y.3d 1100, 156 N.Y.S.3d 780, 178 N.E.3d 427 [2021]), and we find it unnecessary to address the retroactivity of this statute (see People v. Escalona, 202 A.D.3d 451, 158 N.Y.S.3d 583 [1st Dept. 2022], lv denied 38 N.Y.3d 1070, 171 N.Y.S.3d 458, 191 N.E.3d 410 [2022]).