PEOPLE v. CLARKE (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Jerry J. Iannece, J.), rendered July 14, 2023, convicting her of attempted grand larceny in the third degree, upon her plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The record reflects that, as a condition of the promised sentence, the Supreme Court imposed a requirement that the defendant waive her right to appeal.  As a general matter, “whether to seek the inclusion of an appeal waiver in a plea bargain is the prerogative of the People” (People v. Sutton, 184 A.D.3d 236, 244, 125 N.Y.S.3d 739;  see People v. Torres, 216 A.D.3d 675, 676, 188 N.Y.S.3d 162).  “[A] court which demands such a waiver ‘should articulate on the record its reasons for doing so’ ” (People v. Torres, 216 A.D.3d at 676, 188 N.Y.S.3d 162, quoting People v. Sutton, 184 A.D.3d at 244, 125 N.Y.S.3d 739).  Here, the court did not articulate any reason for imposing an appeal waiver.  Thus, the defendant's purported waiver of the right to appeal is unenforceable (see People v. Torres, 216 A.D.3d at 676, 188 N.Y.S.3d 162;  People v. Sutton, 184 A.D.3d at 244, 125 N.Y.S.3d 739).

Accordingly, the purported appeal waiver does not preclude appellate review of the defendant's application for a waiver of the mandatory surcharge and fees pursuant to CPL 420.35(2–a) (see People v. Sutton, 184 A.D.3d at 244–245, 125 N.Y.S.3d 739).

Nonetheless, the defendant's contention that the surcharge and fees should be waived pursuant to CPL 420.35(2–a) is unpreserved for appellate review (see id. § 470.05[2];  People v. Forero, 236 A.D.3d 816, 817, 227 N.Y.S.3d 740).  Under the circumstances, and in the absence of the People's consent, we decline to reach the issue in the exercise of our interest of justice jurisdiction.

DUFFY, J.P., FORD, GOLIA and QUIRK, JJ., concur.