People v Abraham (Austin)

[*1] People v Abraham (Austin) 2022 NY Slip Op 50600(U) Decided on June 17, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 17, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1322 K CR

The People of the State of New York, Respondent,

against

Austin Abraham, Appellant.

Appellate Advocates (Caitlyn Carpenter of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

Appeals from three judgments of the Criminal Court of the City of New York, Kings County (Kerry Ward, J.), rendered July 29, 2019. Each judgment convicted defendant, upon his plea of guilty, of criminal contempt in the second degree, and imposed sentence. The appeals from the judgments of conviction bring up for review the imposition of mandatory surcharges and fees.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the judgments of conviction are modified, as a matter of discretion in the interest of justice, by vacating the mandatory surcharges and fees imposed; as so modified, the judgments of conviction are affirmed.

While not part of a judgment of conviction (see generally People v Guerrero, 12 NY3d 45, 48-49 [2009]), mandatory surcharges and fees are reviewable upon an appeal from a judgment of conviction (see People v Torres, 73 Misc 3d 136[A], 2021 NY Slip Op 51073[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]) and, here, the sole issue on appeal is a request for this court to waive the mandatory surcharges and fees imposed upon defendant at sentencing. The People oppose the waiver.

The three judgments of conviction herein were rendered before the enactment of CPL 420.35 (2-a), which permits, under certain circumstances, including the interests of justice (see CPL 420.35 [2-a] [c]), the waiver of mandatory surcharges and various fees where the person who committed the offense was less than 21 years old at the time of the offense, as was defendant. Since CPL 420.35 (2-a) has been applied retroactively (see People v Dyshawn B., 196 AD3d 638 [2021]), here, in the interest of justice, we waive the mandatory surcharges and fees [*2]imposed upon defendant at sentencing (see CPL 420.35 [2-a] [c]; Dyshawn B., 196 AD3d 638; Torres, 2021 NY Slip Op 51073[U]).

Accordingly, the judgments of conviction are modified by vacating the mandatory surcharges and fees imposed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 17, 2022