People v Diaz

People v Diaz 2022 NY Slip Op 03455 Decided on May 26, 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: May 26, 2022
Before: Manzanet-Daniels, J.P., Kapnick, Shulman, Rodriguez, Pitt, JJ.
Ind. No. 520/17 893/17 3334/16 Appeal No. 16017-16017A Case No. 2018-4479

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

v

Nicholas Diaz, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.

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

Judgments, Supreme Court, Bronx County (Shari R. Michels, J.), rendered January 22, 2018, convicting defendant, upon his pleas of guilty, of attempted robbery in the second degree, attempted burglary in the second degree and attempted criminal possession of a forged instrument in the second degree, and sentencing him to an aggregate term of three years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (see People v Thomas, 34 NY3 545 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]), which forecloses review of his argument that the mandatory surcharge and fees imposed at sentencing should be waived pursuant to CPL 420.35(2-a) (see People v Montanez, 203 AD3d 755 [2d Dept 2022]). "A defendant's valid waiver of the right to appeal includes waiver of the right to invoke the Appellate Division's interest-of-justice jurisdiction" (People v Lopez, 6 NY3d 248, 255 [2006]). Accordingly, we need not reach the question of whether this statute applies retroactively to defendant (see People v Utsey, 7 NY3d 398, 404 [2006]; People v Behlog, 74 NY2d 237, 239 [1989]), who was sentenced before its enactment (see People v Escalona, 202 AD3d 451 [1st Dept 2022]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 26, 2022