PEOPLE v. COLEMAN (2022)

Judgment, Supreme Court, New York County (Guy Mitchell, J. at plea;  Steven M. Statsinger, J. at sentencing), rendered July 17, 2019, as amended September 6, 2019, convicting defendant of robbery in the second degree, and sentencing him to a term of 31/212 years, and judgment, same court (Statsinger, J.), rendered July 17, 2019, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him to a consecutive term of 5 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 on each case, and otherwise affirmed.

Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 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]).  Defendant's argument that he did not sign the written waiver form, which was signed only by his counsel, does not warrant a different conclusion under the circumstances of this case (see e.g. People v. Lopez, 6 N.Y.3d 248, 254–55, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]).  We do not consider the arguments that are raised for the first time in defendant's reply brief, including his remaining arguments that his waiver was not knowing, intelligent, and voluntary.

Defendant's valid waiver of his right to appeal forecloses review of the court's discretionary determination in which it denied youthful offender treatment (see People v. Pacherille, 25 N.Y.3d 1021, 1023–1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015]), as well as his claims that his sentence is excessive and that the surcharges and fees imposed at sentencing should be vacated pursuant to CPL 420.35(2–a).  In any event, we find that the court providently exercised its discretion in denying youthful offender treatment, and we perceive no basis for reducing the sentence.

However, the People elect not to rely on the appeal waiver in this case to the extent it applies to the issue of fees and surcharges.  Based on the People's consent as a matter of prosecutorial discretion, and pursuant to our own interest of justice powers, we waive the surcharge and fees imposed on defendant at sentencing (see e.g. People v. Chirinos, 190 A.D.3d 434, 135 N.Y.S.3d 641 [1st Dept. 2021]).