PEOPLE v. FELICIANO (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Mario F. Mattei, J., at plea;  Marina Cora Mundy, J., at sentence), rendered July 12, 2022, convicting him of criminal possession of stolen property in the fifth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the mandatory surcharge and fees 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];  People v. Jawan Lee, 236 A.D.3d 924, 228 N.Y.S.3d 692;  People v. Taj W., 235 A.D.3d 1016, 1016, 227 N.Y.S.3d 716).  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 (see People v. Clarke, 243 A.D.3d 582, 242 N.Y.S.3d 106).

The defendant's contention that he was denied the effective assistance of counsel at sentencing based on defense counsel's failure to request that the mandatory surcharge and fees be waived is without merit (see People v. Robinson, 176 A.D.3d 877, 107 N.Y.S.3d 872).  The defendant failed “to demonstrate the absence of strategic or other legitimate explanations” for defense counsel's alleged shortcoming at the sentencing proceeding (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).  Under the circumstances, the defendant failed to establish that he received the ineffective assistance of counsel under either the federal or state constitutional standards (see generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;  People v. Benevento, 91 N.Y.2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584).

DILLON, J.P., FORD, LOVE and MCCORMACK, JJ., concur.