The People of the State of New York, Respondent, v. Donald Telfair, Appellant. (2026)

ORDERED that the judgment of conviction is affirmed.

On January 8, 2025, defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) under docket No. CR-018445-24SU. Defendant was sentenced on April 14, 2025.

On appeal, defendant argues that his appeal waiver was not knowing, voluntary, and intelligent; that he was deprived of his right to due process when the District Court imposed an enhanced sentence without making further inquiry to determine whether he had violated a presentence condition of his plea agreement by being arrested for a new offense; that this court should apply CPL 420.35 (2-a) to vacate the mandatory surcharge and fees imposed at sentencing despite defendant being over age 21 at the time of the subject offense; and, alternatively, that CPL 420.35 (2-a) is unconstitutional because its limitation of relief to persons under age 21 at the time of the offense constitutes impermissible discrimination.

As the People correctly concede, the record does not establish that defendant's waiver of the right to appeal was knowing, voluntary, and intelligent (see People v Bisono, 36 NY3d 1013, 1017-1018 [2020]; People v Thomas, 34 NY3d 545, 565-566 [2019]). The District Court's oral colloquy mischaracterized the nature of the appeal waiver as an absolute bar to the taking of a direct appeal, and failed to inform defendant that appellate review remained available for certain issues (see People v Edwards, 223 AD3d 840, 840 [2024]; People v Matthews, 220 AD3d 719, 719 [2023]). The court also did not explain that the appellate rights that defendant was waiving were separate and distinct from the rights automatically forfeited by pleading guilty (see People v Hall, 224 AD3d 776, 776 [2024]; People v Gamble, 194 AD3d 838, 839 [2021]). Although a written waiver form is not required for an appeal waiver to be valid (see People v Lopez, 210 AD3d 700, 701 [2022]; People v Brown, 122 AD3d 133, 138-139 [2014]), here, there was no written waiver form to supplement the deficient oral colloquy (see People v Martines, 239 AD3d 772, 773 [2025]). Moreover, "it will not be sufficient for the trial court to defer to the defendant's off-the-record conversations with defense counsel by merely confirming with defense counsel that he or she has discussed the waiver of the right to appeal with the defendant" (People v Neilson, 167 AD3d 779, 780 [2018] [internal quotation marks omitted]; see People v Rivera, 201 AD3d 673, 674 [2022]). Therefore, the purported waiver does not preclude review of defendant's appellate contentions.

Assuming that the sentence at issue here was "enhanced" (but see People v Michel, 221 AD3d 831, 831 [2023]; People v Kiefer, 195 AD3d 1315, 1317 [2021]), the fact that defendant has served the "enhanced" sentence renders moot his contention that the District Court erred in imposing it (see People v Walker, 127 AD3d 1506, 1506 [2015]; People v Nicholson, 31 AD3d 468, 469 [2006]; People v Dietz, 55 Misc 3d 149[A], 2017 NY Slip Op 50727[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Marrow, 52 Misc 3d 136[A], 2016 NY Slip Op 51046[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

Defendant's constitutional challenge to CPL 420.35 (2-a) is unpreserved for appellate review (see CPL 470.05 [2]; People v Baumann & Sons Buses, Inc., 6 NY3d 404, 408 [2006]) and, in any event, not properly before this court since there is no indication in the record that the Attorney General was given the requisite notice (see CPLR 1012 [b] [1], [3]; Executive Law § 71 [1], [3]; People v Brown, 64 AD3d 611, 611 [2009]). Defendant's challenge to the assessment of the surcharge and fees is also unpreserved (see CPL 470.05 [2]; People v McMahon, 149 AD3d 1102, 1103 [2017]; People v Kamal, 144 AD3d 1055, 1055 [2016]). "Additionally, since the assessments are mandatory, this court has no authority to waive them in the interest of justice" (People v Paris, 60 Misc 3d 139[A], 2018 NY Slip Op 51196[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; see CPL 420.35 [2]; People v Jones, 26 NY3d 730, 735 [2016]; People v Sirabella, 148 AD3d 1186, 1186 [2017]).

Accordingly, the judgment of conviction is affirmed.

CONWAY, J.P., DRISCOLL and LICCIONE, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: April 30, 2026