THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAJAHNYA LITTLE DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of attempted gang assault in the first degree (Penal Law §§ 110.00, 120.07). We reject defendant's contention that the waiver of the right to appeal is invalid. The oral colloquy, together with the written waiver, “was sufficient to support a knowing and voluntary waiver under the totality of the circumstances” (People v Thomas, 34 NY3d 545, 564 [2019], cert denied 589 US 1302 [2020]; see People v Drake, 195 AD3d 1442, 1442 [4th Dept 2021], lv denied 37 NY3d 991 [2021], reconsideration denied 37 NY3d 1059 [2021]).

The valid waiver of the right to appeal forecloses our review of defendant's challenge to County Court's exercise of discretion in denying youthful offender status and any request that we exercise our interest of justice jurisdiction to adjudicate her a youthful offender (see People v Pacherille, 25 NY3d 1021, 1023-1024 [2015]; People v Wright, 246 AD3d 1383, 1383-1384 [4th Dept 2026]; People v Burch, 234 AD3d 1246, 1247 [4th Dept 2025], lv denied 43 NY3d 1006 [2025]). The valid waiver also precludes our review of defendant's challenge to the harshness of the sentence (see People v Lopez, 6 NY3d 248, 255-256 [2006]; Wright, 246 AD3d at 1383-1384; Burch, 234 AD3d at 1247) and her unpreserved contention that the mandatory surcharge and fees imposed at sentencing should be waived pursuant to CPL 420.35 (2-a) (see People v Ogden, 244 AD3d 1774, 1775-1776 [4th Dept 2025]; People v Perez, 243 AD3d 685, 685-686 [2d Dept 2025]; People v DeJesus, 217 AD3d 584, 585 [1st Dept 2023], lv denied 42 NY3d 970 [2024]; People v Bowman, 213 AD3d 1282, 1282 [4th Dept 2023], lv denied 39 NY3d 1140 [2023]).

All concur except Ogden and DelConte, JJ., who dissent in part and vote to modify in accordance with the following memorandum: We respectfully dissent in part inasmuch as we disagree with the majority that our review of the mandatory surcharge and fees imposed at sentencing is precluded under the circumstances of this case. While our analysis of whether a surcharge and fee imposed at sentencing should be waived typically stops upon a determination that there is a valid waiver of the right to appeal (see People v Ogden, 244 AD3d 1774, 1775-1776 [4th Dept 2025]), “that does not mean that it must stop there” (People v Hannah T., 240 AD3d 1260, 1261 [4th Dept 2025]). “ ‘[T]he Appellate Division may be divested of its unique interest-of-justice jurisdiction only by constitutional amendment’ ” (id., quoting People v Lopez, 6 NY3d 248, 255 [2006]), and that jurisdiction includes our “interest of justice powers” to “waive the surcharge and fees imposed on [a] defendant at sentencing” (People v Chirinos, 190 AD3d 434, 435 [1st Dept 2021]; see CPL 420.35 [2-a] [c]).

Here, defendant was 16 years old when she and other unidentified individuals “jumped” the 14-year-old victim, repeatedly punching, kicking, and stomping on the victim's body and running over the victim in a car. The victim was left unconscious and suffered a traumatic brain injury, a lacerated liver, a fractured spine, a broken leg, and multiple broken ribs. Consistent with the plea agreement, defendant pleaded guilty to attempted gang assault in the first degree (Penal Law §§ 110.00, 120.07), a class C violent felony (see § 70.02 [1] [b]), and was sentenced, after youthful offender status was denied, to a determinate term of five years’ incarceration with five years’ postrelease supervision. The sentence is not, in our view, unduly harsh or severe. However, in addition to the sentence, a surcharge of $300, a crime victim assistance fee of $25, and a DNA databank fee of $50 were imposed on defendant, who was only 16 years old at sentencing, with no prior criminal record, notwithstanding that “[a] court may waive any mandatory surcharge, ․ the crime victim assistance fee, [and the] DNA databank fee ․ when the court finds that the defendant was under the age of twenty-one at the time the offense was committed and ․ (b) after considering the goal of promoting successful and productive reentry and reintegration as set forth in [Penal Law § 1.05 (6)], the imposition of such surcharge or fee would adversely impact the defendant's reintegration into society; or (c) the interests of justice” (CPL 420.35 [2-a]).

Upon reviewing the mitigation report detailing defendant's social history and the lifelong financial obstacles she will likely confront upon her release from prison as a felony offender, including limitations on educational and employment opportunities, we conclude that the imposition of the surcharge and fees in this case is “fundamentally unjust” (Hannah T., 240 AD3d at 1262) inasmuch as they pose an unreasonable hardship and will frustrate the goal of promoting defendant's successful and productive reintegration into society (see generally CPL 420.35 [2-a]). Thus, notwithstanding the valid waiver of the right to appeal, we vote to modify the judgment as a matter of discretion in the interest of justice by “ ‘vacat[ing] the surcharge and fees imposed at sentencing’ ” (People v Reed, 237 AD3d 1490, 1492 [4th Dept 2025], lv denied 43 NY3d 1058 [2025], quoting People v Lassiter, 211 AD3d 545, 546 [1st Dept 2022], lv denied 39 NY3d 1112 [2023]; see generally Hannah T., 240 AD3d at 1265).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court