People v. Lemos
| Decision Date | 21 November 2006 |
| Docket Number | 9601. |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JIMMY LEMOS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Defendant's written waiver "establishes that [he] knowingly, intelligently and voluntarily waived his right to appeal" (People v Ramos, 7 NY3d 737, 738 [2006]). This waiver forecloses review of his present claim that the mandatory surcharge and fees should be stricken from his sentence and commitment sheet on the ground that they were not part of the sentence that the court pronounced orally, in his presence in open court, and were not added by way of a judicial proceeding, such as a CPL 440.40 motion by the People to set aside the sentence. We do not find that defendant is challenging the substantive legality of his sentence; he concedes that he would have been subject to the surcharge and fees had the court included them in the sentence it pronounced orally. Thus, defendant is asserting a procedural defect that can be waived (see People v Samms, 95 NY2d 52, 56-58 [2000]; People v Abruzzese, 30 AD3d 219, 220 [2006], lv denied 7 NY3d 784 [2006]). Furthermore, this claim was capable of being preserved by timely objection, and we decline to reach it in the interest of justice.
Were we to find that defendant's argument is not foreclosed by his appeal waiver, and were we to also grant review of this unpreserved claim in the interest of justice, we would find it unavailing (see People v Sparber, 34 AD3d 265 [2006]). The surcharge and fees in question are mandatory and contain no element of discretion (see People v Prihett, 279 AD2d 335 [2001]; People v Neu, 1 AD3d 798 [2003]). Furthermore, the court, acting through its court clerk, set forth the fees in the commitment sheet, as well as on the worksheet, which the court signed personally. Even assuming the existence of a constitutional requirement that every portion of a sentence be "entered upon the records of the court" (Hill v United States ex rel. Wampler, 298 US 460, 464 [1936]), these entries satisfied such a requirement (compare Earley v Murray, 451 F3d 71, 75-76 [2d Cir 20...
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...N.E.2d 460 8 N.Y.3d 924 PEOPLE v. LEMOS. Court of Appeals of the State of New York. March 2, 2007. Appeal from 1st Dept.: 34 A.D.3d 343, 824 N.Y.S.2d 289 (NY). Application for leave to criminal appeal. Denied. (Graffeo, ...