Opinion
13530 Ind. No. 1970/16 Case No. 2018-214
04-06-2021
The PEOPLE of the State of New York, Respondent, v. James CHALEN, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Lauren E. Jones of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York ( Philip Vyse Tisne of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Lauren E. Jones of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York ( Philip Vyse Tisne of counsel), for respondent.
Renwick, J.P., Kennedy, Scarpulla, Shulman, JJ.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered January 5, 2017, as amended March 3, 2017, convicting defendant, upon his plea of guilty, of attempted criminal possession of marihuana in the second degree, and sentencing him to a term of 1½ years and ordering forfeiture of $2,945, unanimously affirmed.
Defendant made a valid waiver of his right to appeal ( see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ), which forecloses review of his current challenge to the forfeiture order ( see People v. Lopez, 6 N.Y.3d 248, 255–57, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Abruzzese, 30 A.D.3d 219, 220, 816 N.Y.S.2d 464 [1st Dept. 2006]lv denied 7 N.Y.3d 784, 821 N.Y.S.2d 814, 854 N.E.2d 1278 [2006] ).
Regardless of whether defendant made a valid waiver of his right to appeal, he failed to preserve any of his present arguments regarding the forfeiture order ( see People v. Burgos, 129 A.D.3d 627, 628, 13 N.Y.S.3d 350 [1st Dept. 2015], lv denied 26 N.Y.3d 1038, 22 N.Y.S.3d 168, 43 N.E.3d 378 [2015] ), and we decline to review them in the interest of justice. Defendant's central claim is that the forfeiture was unauthorized by law because the forfeited cash was not proven to be the proceeds of the crime of which defendant was convicted. This claim does not fall within the exception to the preservation rule concerning the legality of a sentence. To the extent it may be analogized to a claim of evidentiary insufficiency, such claims are normally waivable ( see e. g. People v. Gray, 86 N.Y.2d 10, 20–22, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ).
As an alternative holding, we find that at the time of defendant's plea, CPLR article 13–A authorized the forfeiture in this case, and defendant stipulated that the funds were subject to forfeiture under that article. Defendant has not established any ground for relieving him of the consequences of his stipulation. We similarly reject defendant's remaining challenges to the forfeiture, including his claim that it constituted an excessive fine.