PEOPLE v. CHUNG (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robert Charles Kohm, J.), rendered April 5, 2016, convicting him of conspiracy in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was not made knowingly, voluntarily, and intelligently is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise this issue before the Supreme Court (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Jensen, 205 A.D.3d 926, 927, 166 N.Y.S.3d 579).  Moreover, contrary to the defendant's contention, the narrow exception to the preservation rule does not apply here, as nothing in the defendant's factual recitation cast doubt upon his guilt, negated an essential element of the crime, or called into question the voluntariness of his plea (see People v. Bush, 38 N.Y.3d 66, 71, 167 N.Y.S.3d 435, 187 N.E.3d 1047;  People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).  In any event, the record establishes that the defendant's plea was made knowingly, voluntarily, and intelligently (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;  People v. Razzaq, 202 A.D.3d 998, 999, 159 N.Y.S.3d 723).

The defendant's contentions with respect to alleged evidentiary errors in the grand jury proceeding were forfeited by the defendant's plea of guilty (see People v. Hansen, 95 N.Y.2d 227, 232, 715 N.Y.S.2d 369, 738 N.E.2d 773;  People v. Rivera, 226 A.D.3d 929, 931–932, 209 N.Y.S.3d 532).

CPL 420.35(2–a) authorizes a court, upon certain enumerated grounds (see id. § 420.35[2–a][a]–[c]), to waive the otherwise “mandatory” surcharge and fees imposed by statute (Penal Law § 60.35[1][a];  see generally People v. Jones, 26 N.Y.3d 730, 733–737, 27 N.Y.S.3d 431, 47 N.E.3d 710) where an individual was “under the age of twenty-one at the time the offense was committed” (CPL 420.35[2–a]).  Here, although the defendant was less than 21 years old at the time the underlying offense was committed, the record does not demonstrate that a waiver of the mandatory surcharge and fees was warranted under any of the grounds enumerated in the statute (see id. § 420.35[2–a][a]–[c];  People v. Attah, 203 A.D.3d 1063, 1064, 162 N.Y.S.3d 784).  Under the circumstances, and in the absence of the People's consent, we decline to waive the surcharge and fees levied at sentencing in the interest of justice (see People v. Attah, 203 A.D.3d at 1064, 162 N.Y.S.3d 784).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

DILLON, J.P., GENOVESI, LANDICINO and MCCORMACK, JJ., concur.