People v. Acevedo

• Decision Date: 30 November 2022
• Docket Number: 2020–06423,Ind. No. 2354/17
• Citation: 210 A.D.3d 1106,177 N.Y.S.3d 493 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Alexander ACEVEDO, appellant.
• Court: New York Supreme Court — Appellate Division

210 A.D.3d 1106

177 N.Y.S.3d 493 (Mem)

The PEOPLE, etc., respondent,

v.Alexander ACEVEDO, appellant.

2020–06423

Ind. No. 2354/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 31, 2022

November 30, 2022

Patricia Pazner, New York, N.Y. (David P. Greenberg of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens. NY (Johnnette Traill, William Branigan, and Benjamin N. Costanza of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leslie G. Leach, J.), rendered July 30, 2020, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 564–565, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Lopez, 6 N.Y.3d 248, 255–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Stevens, 203 A.D.3d 958, 959, 163 N.Y.S.3d 615 ; People v. Batista, 167 A.D.3d 69, 77–78, 86 N.Y.S.3d 492 ). The defendant's valid waiver of his right to appeal precludes this Court's review of his challenge to the Supreme Court's suppression determination (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ).

The defendant further contends that the mandatory surcharge and fees that were imposed at sentencing (see Penal Law § 60.35[1][a] ) should be waived pursuant to CPL 420.35(2–a) in the interest of justice. Contrary to the People's contention, this contention is properly reviewable under the circumstances of this case (see People v. Dyshawn B., 196 A.D.3d 638, 641, 152 N.Y.S.3d 131 ). However, contrary to the defendant's contention, the record does not demonstrate that a waiver of the mandatory surcharge and fees was warranted pursuant to any of the grounds set forth in CPL 420.35(2–a)(a)–(c) (see People v. Attah, 203 A.D.3d 1063, 1064, 162 N.Y.S.3d 784 ). Under the circumstances presented, and in the absence of the consent of the People, we decline to waive the surcharge and fees imposed at sentencing in the interest of justice (see id. at 1064, 162 N.Y.S.3d 784 ; People v. Whitfield, 198 A.D.3d 446, 152 N.Y.S.3d 571 ; cf. People v. Dickerson, 201 A.D.3d 731, 156 N.Y.S.3d 881 ).

DILLON, J.P., CHAMBERS, FORD and DOWLING, JJ., concur.