PEOPLE v. GALVAN (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered August 31, 2017, convicting him of operating as a major trafficker, upon his plea of guilty, and imposing sentence which included a fine in the sum of $30,000.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating so much of the sentence as imposed a fine in the sum of $30,000;  as so modified, the judgment is affirmed.

The defendant's waiver of his right to appeal does not preclude appellate review of his contention that the County Court improperly imposed an enhanced sentence (see People v. Ruiz, 209 A.D.3d 1042, 1043, 177 N.Y.S.3d 610;  People v. Baker, 204 A.D.3d 1471, 1471, 166 N.Y.S.3d 816;  People v. Gregory, 140 A.D.3d 1088, 1089, 33 N.Y.S.3d 736).  Although the defendant's contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Andre, 168 A.D.3d 757, 757, 89 N.Y.S.3d 637;  People v. Martin, 151 A.D.3d 753, 753, 53 N.Y.S.3d 557), we reach the issue in the exercise of our interest of justice jurisdiction (see People v. Ruiz, 209 A.D.3d at 1043, 177 N.Y.S.3d 610;  People v. Gregory, 140 A.D.3d at 1089, 33 N.Y.S.3d 736).

The County Court improperly enhanced the defendant's sentence by imposing a fine that was not part of the negotiated plea agreement (see People v. Ruiz, 209 A.D.3d at 1043, 177 N.Y.S.3d 610;  People v. Sims, 146 A.D.3d 820, 821, 45 N.Y.S.3d 491;  People v. Gregory, 140 A.D.3d at 1089, 33 N.Y.S.3d 736).  The relief the defendant requests in connection with this issue is vacatur of so much of his sentence as imposed the fine.  Under the circumstances of this case, we deem it appropriate to vacate so much of the defendant's sentence as imposed a fine, so as to conform the sentence imposed to the promise made to the defendant in exchange for his plea of guilty (see People v. Ruiz, 209 A.D.3d at 1043, 177 N.Y.S.3d 610;  People v. Sims, 146 A.D.3d at 821, 45 N.Y.S.3d 491;  People v. Gregory, 140 A.D.3d at 1089, 33 N.Y.S.3d 736).

The defendant's remaining contentions are academic in light of the foregoing.

CONNOLLY, J.P., BRATHWAITE NELSON, CHAMBERS and VOUTSINAS, JJ., concur.