PEOPLE v. TAJ (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Bruna L. DiBiase, J.), rendered August 30, 2022, adjudicating him a youthful offender, upon his plea of guilty to robbery in the second degree, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  The Supreme Court's terse plea colloquy failed to advise the defendant that he would ordinarily retain the right to appeal even after pleading guilty, that a waiver of the right to appeal is separate and distinct from the waiver of a trial and other rights by a plea of guilty, or that he was being asked to waive his right to appeal as a condition of the plea agreement (see People v. Hall, 224 A.D.3d 776, 203 N.Y.S.3d 401;  People v. Stinson, 189 A.D.3d 1271, 134 N.Y.S.3d 200;  People v. Mojica, 178 A.D.3d 856, 111 N.Y.S.3d 885).  In light of the defendant's young age and background, the written waiver form was insufficient to overcome the deficiencies in the oral appeal waiver colloquy (see People v. Muhammad, 231 A.D.3d 868, 219 N.Y.S.3d 403;  People v. Farrell, 169 A.D.3d 919, 920, 94 N.Y.S.3d 164).  Thus, the purported appeal waiver does not preclude appellate review of the defendant's claim that the sentence imposed was excessive (see People v. Haughton, 229 A.D.3d 467, 212 N.Y.S.3d 446).

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

The defendant's contention that the mandatory surcharge and fee imposed at sentencing (see Penal Law § 60.35[1][a]) should be waived pursuant to CPL 420.35(2–a) is unpreserved for appellate review (see id. § 470.05[2]).  In any event, as the record does not establish any of the grounds enumerated in the statute to waive such fees and charges, the defendant's contention is without merit (see id. § 420.35[2–a][a]–[c];  People v. Taylor, 209 A.D.3d 772, 773, 174 N.Y.S.3d 898;  People v. Attah, 203 A.D.3d 1063, 162 N.Y.S.3d 784).

DILLON, J.P., WOOTEN, VENTURA and GOLIA, JJ., concur.