Opinion
1185 Ind. No. 2045/13 Case No. 2020–01050
12-12-2023
The PEOPLE of the State of New York, Respondent, v. JEROME H., Defendant–Appellant.
Twyla Carter, The Legal Aid Society, New York (Elizabeth Batkin of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Elliott R. Hamilton of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Elizabeth Batkin of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Elliott R. Hamilton of counsel), for respondent.
Kern, J.P., Singh, Kennedy, Mendez, Rodriguez, JJ.
Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered December 3, 2019, convicting defendant, upon his plea of guilty, of robbery in the first degree, adjudicating him a youthful offender, and sentencing him to a term of one year, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed on defendant at sentencing, and otherwise affirmed.
Defendant's claim that his plea was invalid because the court failed to inquire about a possible affirmative defense to first-degree robbery, where the court had been informed that the gun alleged to have been used in the robbery may have been a BB gun, does not come within the narrow exception to the preservation requirement (see People v. Toxey, 86 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160 [1995] ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Brown, 147 A.D.3d 570, 571, 48 N.Y.S.3d 333 [1st Dept. 2017], lv denied 29 N.Y.3d 1029, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017] ), and we decline to review this unpreserved claim in the interest of justice.
Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing (see People v. Chirinos, 190 A.D.3d 434, 135 N.Y.S.3d 641 [1st Dept. 2021] ). We note that the People do not oppose this relief.