People v Cutts

People v Cutts 2022 NY Slip Op 05666 Decided on October 11, 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: October 11, 2022
Before: Gische, J.P., Kern, Gesmer, Rodriguez, Pitt, JJ.
Ind No. 846/17 Appeal No. 16387 Case No. 2019-2943

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

v

Kowan Cutts, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Simon Greenberg of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Kalani A. Browne of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Robert A. Neary, J.), rendered February 21, 2018, convicting defendant, upon his plea of guilty, of making false statement, stolen vehicles (Vehicle and Traffic Law § 426), and sentencing him to a definite jail term of one year, unanimously modified, on the law, to the extent of reducing the mandatory surcharge and crime victim assistance fee imposed at sentencing to $55, and $5, respectively, and otherwise 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 his argument that the mandatory surcharge and fees imposed should be vacated pursuant to CPL 420.35 (2-a) (see People v Diaz, 205 AD3d 624 [1st Dept 2022], lv denied 38 NY3d 133 [2022]). Accordingly, we need not reach the question of whether this statute applies retroactively to defendant, who was convicted before its enactment (see People v Escalona, 202 AD3d 451 [1st Dept 2022], lv denied 38 NY3d 1070 [2022]).

However, the People concede that the amounts of the mandatory surcharge and crime victim assistance fee imposed were incorrect, because the fee schedule set forth in Vehicle and Traffic Law applies, rather than as set forth in the Penal Law.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 11, 2022