Opinion
14657-14657A & M-03298 Ind. Nos. 97/15 721/15 Case No. 2018-03592
11-18-2021
The PEOPLE of the State of New York, Respondent, v. Kevin PANTALEON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Elizabeth G. Caldwell of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (R. Jeannie Campbell–Urban of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Elizabeth G. Caldwell of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (R. Jeannie Campbell–Urban of counsel), for respondent.
Kapnick, J.P., Webber, Oing, Moulton, Rodriguez, JJ.
Judgments, Supreme Court, New York County (Juan M. Merchan, J.), convicting defendant, upon his pleas of guilty, of two counts of burglary in the second degree, criminal mischief in the third degree and petit larceny, and sentencing him to an aggregate term of five years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the fees and surcharges imposed at sentencing, and otherwise affirmed.
We find 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 589 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 excessive sentence claim. Even assuming the waiver was not valid, we perceive no basis for reducing the sentence. However, based on the People's consent as a matter of prosecutorial discretion, and pursuant to our own interest of justice powers, we direct that the surcharge and fees imposed on defendant at sentencing be waived (see People v. Chirinos, 190 A.D.3d 434, 135 N.Y.S.3d 641 [1st Dept. 2021] ).
Motion to enlarge the record, denied.