PEOPLE v. LEMOS

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jimmy LEMOS, Defendant-Appellant.

Decided: November 21, 2006

TOM, J.P., ANDRIAS, SAXE, GONZALEZ, SWEENY, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Peter Theis of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Eric Rosen of counsel), for respondent.

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered September 7, 2005, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.

 Defendant's written waiver “establishes that [he] knowingly, intelligently and voluntarily waived his right to appeal” (People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ).   This waiver forecloses review of his present claim that the mandatory surcharge and fees should be stricken from his sentence and commitment sheet on the ground that they were not part of the sentence that the court pronounced orally, in his presence in open court, and were not added by way of a judicial proceeding, such as a CPL 440.40 motion by the People to set aside the sentence.   We do not find that defendant is challenging the substantive legality of his sentence;  he concedes that he would have been subject to the surcharge and fees had the court included them in the sentence it pronounced orally.   Thus, defendant is asserting a procedural defect that can be waived (see People v. Samms, 95 N.Y.2d 52, 56-58, 710 N.Y.S.2d 310, 731 N.E.2d 1118 [2000];  People v. Abruzzese, 30 A.D.3d 219, 220, 816 N.Y.S.2d 464 [2006], lv. denied 7 N.Y.3d 784, 821 N.Y.S.2d 814, 854 N.E.2d 1278 [2006] ).   Furthermore, this claim was capable of being preserved by timely objection, and we decline to reach it in the interest of justice.

 Were we to find that defendant's argument is not foreclosed by his appeal waiver, and were we to also grant review of this unpreserved claim in the interest of justice, we would find it unavailing (see People v. Sparber, 34 A.D.3d 265, 823 N.Y.S.2d 405 [2006] ).   The surcharge and fees in question are mandatory and contain no element of discretion (see People v. Prihett, 279 A.D.2d 335, 718 N.Y.S.2d 840 [2001];  People v. Neu, 1 A.D.3d 798, 767 N.Y.S.2d 313 [2003] ).   Furthermore, the court, acting through its court clerk, set forth the fees in the commitment sheet, as well as on the worksheet, which the court signed personally.   Even assuming the existence of a constitutional requirement that every portion of a sentence be “entered upon the records of the court” (Hill v. United States ex rel. Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 80 L.Ed. 1283 [1936] ), these entries satisfied such a requirement (compare Earley v. Murray, 451 F.3d 71, 75-76 [2d Cir.2006] ).   We see no constitutional infirmity in the use of a written document to clarify an aspect of a sentence upon which the court's oral pronouncement was silent (see e.g. United States v. Pugliese, 860 F.2d 25, 30 [2d Cir.1988], cert. denied 489 U.S. 1067, 109 S.Ct. 1344, 103 L.Ed.2d 813 [1989] ), particularly where, as here, the relevant portion of the written document performs the ministerial function of setting forth mandatory consequences of the conviction.