PEOPLE v. READING

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The PEOPLE of the State of New York, Respondent, v. Beverly J. READING, Defendant-Appellant.

Decided: December 30, 2009

PRESENT: HURLBUTT, J.P., SMITH, CENTRA, GREEN, AND PINE, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of Counsel), for Defendant-Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of Counsel), for Respondent.

Defendant appeals from a judgment convicting her upon her plea of guilty of grand larceny in the fourth degree (Penal Law § 155.30[4] ). We note at the outset that we agree with defendant that her waiver of the right to appeal is invalid “inasmuch as the record fails to ‘establish that [she] understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ “ (People v. Hendrix, 62 A.D.3d 1261, 1262, 878 N.Y.S.2d 532, lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 707, 912 N.E.2d 1088, quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Thus, her contention that Supreme Court erred in imposing a crime victim assistance fee because she had paid restitution in full at the time of sentencing is not encompassed by that invalid waiver. Although defendant failed to preserve her contention for our review (see generally People v. King, 57 A.D.3d 1495, 869 N.Y.S.2d 832; People v. Saladeen, 12 A.D.3d 1179, 1180-1181, 785 N.Y.S.2d 250, lv denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a]; Saladeen, 12 A.D.2d at 1180-1181; see also People v. Ramos, 60 A.D.3d 1317, 1317-1318, 875 N.Y.S.2d 714, lv denied 12 N.Y.3d 928, 884 N.Y.S.2d 709, 912 N.E.2d 1090). A defendant shall not be required to pay a crime victim assistance fee where, as here, he or she has paid restitution (see Penal Law § 60.35[6]; People v. Quinones, 95 N.Y.2d 349, 352, 717 N.Y.S.2d 86, 740 N.E.2d 231), and we therefore modify the judgment accordingly.

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the crime victim assistance fee and as modified the judgment is affirmed.

MEMORANDUM: