People v. Nicholson, 5333.

• Decision Date: 10 February 2005
• Docket Number: 5333.
• Citation: 2005 NY Slip Op 01103,15 A.D.3d 237,789 N.Y.S.2d 153
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WINSTON NICHOLSON, Appellant.
• Court: New York Supreme Court — Appellate Division

15 A.D.3d 237

789 N.Y.S.2d 153

2005 NY Slip Op 01103

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WINSTON NICHOLSON, Appellant.

5333.

Appellate Division of the Supreme Court of the State of New York, First Department.

February 10, 2005.

Judgment, Supreme Court, Bronx County (Steven Lloyd Barrett, J.), rendered May 12, 2003, convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him to a term of eight years, and imposing a mandatory surcharge of $200 and a crime victim assistance fee of $10, unanimously modified, on the law, to the extent of reducing the amounts of the mandatory surcharge and crime victim assistance fee to $150 and $5, respectively, and otherwise affirmed.

Defendant's valid waiver of his right to appeal encompassed his present claim that his agreed-upon sentence is excessive (see People v Hidalgo, 91 NY2d 733 [1998]), and forecloses interest of justice review of that claim (People v Seaberg, 74 NY2d 1, 9-10 [1989]). In any event, were we to find that review was not precluded, we would perceive no basis for reducing the sentence.

However, since the crime was committed before the effective date of the legislation increasing the mandatory surcharge and crime victim assistance fee, defendant's sentence was unlawful to the extent indicated (People v Reeves, 6 AD3d 231 [2004]). Since this issue involves the substantive legality of the sentence, it survives defendant's waiver of his right to appeal.

Concur — Buckley, P.J., Tom, Marlow, Gonzalez and Catterson, JJ.