People v Santiago

People v Santiago 2022 NY Slip Op 05288 Decided on September 27, 2022 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: September 27, 2022
Before: Manzanet-Daniels, J.P., Kapnick, Friedman, Scarpulla, Mendez, JJ.
Ind. No. 2459/17 Appeal No. 16286 Case No. 2019-2869

[*1]The People of the State of New York, Respondent,

v

Tony Santiago, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Naila S. Siddiqui of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Reva Grace Phillips of counsel), for respondent.

Judgment, Supreme Court, Bronx County (George Villegas, J.), rendered April 24, 2018, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of two years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (see People v Thomas, 34 NY3d 545, 559 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]), which forecloses review of the harshness or excessiveness of his sentence. As an alternative holding, we find no basis for reducing the sentence, including the two-year term of post-release supervision.

Defendant's waiver of the right to appeal also precludes review of his argument that the mandatory surcharge and fees imposed should be vacated pursuant to CPL 420.35 (2-a) (see People v Count C., 206 AD3d 496 [1st Dept 2022], citing People v Montanez, 203 AD3d 755 [2d Dept 2022], lv denied 38 NY3d 1009 [2022]). As an alternative holding, we find no basis to waive defendant's surcharge and fees in the interest of justice (see People v Whitfield, 198 AD3d 446, 447 [1st Dept 2021], lv denied 37 NY3d 1100 [2021]), and we find it unnecessary to address the retroactivity of this statute (see People v Escalona, 202 AD3d 451 [1st Dept 2022], lv denied 38 NY3d 1070 [2022]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 27, 2022