Opinion
913 KA 21-01364
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Handsome RICE, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SUSAN M. NORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SUSAN M. NORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the second degree ( Penal Law § 125.15 [1] ) and criminal possession of a weapon in the second degree (§ 265.03 [3]). We affirm.
Preliminarily, we agree with defendant that his waiver of the right to appeal is invalid (see People v. Hussein , 192 A.D.3d 1705, 1706, 141 N.Y.S.3d 379 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 769, 171 N.E.3d 245 [2021] ; People v. Somers , 186 A.D.3d 1111, 1112, 127 N.Y.S.3d 399 [4th Dept. 2020], lv denied 36 N.Y.3d 976, 138 N.Y.S.3d 495, 162 N.E.3d 724 [2020] ; see generally People v. Thomas , 34 N.Y.3d 545, 565-566, 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] ).
Defendant's contention that, because he was under the age of 21 at the time of the underlying offenses, County Court should have waived the mandatory surcharge and fees pursuant to CPL 420.35 (2-a) is unpreserved for our review (see CPL 470.05 [2] ; People v. Taylor , 209 A.D.3d 772, 773, 174 N.Y.S.3d 898 [2d Dept. 2022] ) and, in any event, is without merit (see CPL 420.35 [2-a] ; People v. Attah , 203 A.D.3d 1063, 1064, 162 N.Y.S.3d 784 [2d Dept. 2022], lv denied 38 N.Y.3d 1007, 168 N.Y.S.3d 358, 188 N.E.3d 550 [2022] ). Finally, contrary to defendant's contention, we conclude that the bargained-for sentence is not unduly harsh or severe.