People v. Attah

• Decision Date: 23 March 2022
• Docket Number: 2019–06682,Ind. No. 6789/16
• Parties: The PEOPLE, etc., respondent, v. Alhassan ATTAH, appellant.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1063

162 N.Y.S.3d 784 (Mem)

The PEOPLE, etc., respondent,

v.Alhassan ATTAH, appellant.

2019–06682

Ind. No. 6789/16

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

Submitted—February 17, 2022

March 23, 2022

Patricia Pazner, New York, NY (Sam Feldman of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel; Marielle Burnett on the brief), for respondent.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Laura Johnson, J.), rendered November 27, 2018, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

The defendant further contends that mandatory surcharges and fees that were levied at sentencing (see Penal Law § 60.35[a] ) should be waived pursuant to CPL 420.35(2–a). Although the People contend that the defendant's argument is unpreserved for appellate review (see CPL 470.05[2] ), we consider the merits of the issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c], [6] ; cf. People v. Johnson, 193 A.D.3d 1076, 1077, 143 N.Y.S.3d 222 ; People v. Chirinos, 190 A.D.3d 434, 435, 135 N.Y.S.3d 641 ).

CPL 420.35(2–a) authorizes a court, upon certain enumerated grounds (see CPL 420.35[2–a][a]–[c] ), to waive the otherwise "mandatory" surcharge and fees imposed by statute ( Penal Law § 60.35[a] ; see generally People v. Jones, 26 N.Y.3d 730, 733–737, 27 N.Y.S.3d 431, 47 N.E.3d 710 ), where an individual was "under the age of twenty-one at the time the offense was committed" ( CPL 420.35[2–a] ). Here, although it is undisputed that the defendant was 19 years old at the time the underlying offense was committed, the record does not also demonstrate that a waiver of the mandatory surcharge and fees was warranted under any of the grounds enumerated in the statute (see CPL 420.35[2–a][a]–[c] ; cf. People v. Dyshawn B., 196 A.D.3d 638, 640, 152 N.Y.S.3d 131 ). Under the circumstances, and in the absence of the People's consent, we decline to waive the surcharge and fees levied at sentencing in the interest of justice (see People v. Whitfield, 198 A.D.3d 446, 447, 152 N.Y.S.3d 571 ; cf. People v. Dickerson, 201 A.D.3d 731, 156 N.Y.S.3d 881 ; People v. Rosales, 198 A.D.3d 988, 989, 157 N.Y.S.3d 45 ; People v. Johnson, 193 A.D.3d at 1077, 143 N.Y.S.3d 222 ; People v. Chirinos, 190 A.D.3d at 435, 135 N.Y.S.3d 641 ).

BRATHWAITE NELSON, J.P., RIVERA, MILLER and ZAYAS, JJ., concur.