Opinion
1356 KA 16–01772
03-22-2019
The PEOPLE of the State of New York, Respondent, v. Alonte WORKS, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is modified on the law by vacating the surcharge, DNA databank fee, and crime victim assistance fee and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him as a juvenile offender upon his plea of guilty of murder in the second degree ( Penal Law § 125.25[1] ). As defendant contends and the People correctly concede, we conclude that the surcharge, DNA databank fee, and crime victim assistance fee imposed by County Court must be vacated because defendant is a juvenile offender (see Penal Law §§ 60.00[2] ; 60.10; People v. Sanchez , 165 A.D.3d 1623, 1624, 82 N.Y.S.3d 920 [4th Dept. 2018] ; People v. Stump , 100 A.D.3d 1457, 1458, 953 N.Y.S.2d 441 [4th Dept. 2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ). We therefore modify the judgment accordingly.
Contrary to defendant's further contention, however, we conclude that he validly waived his right to appeal (see People v. Miller , 161 A.D.3d 1579, 1579, 76 N.Y.S.3d 737 [4th Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ; People v. Tyes , 160 A.D.3d 1447, 1447, 72 N.Y.S.3d 902 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ; see generally People v. Sanders , 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). Defendant's valid waiver of the right to appeal forecloses his challenge to the severity of the sentence (see People v. Lopez , 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).
All concur except NEMOYER , and CURRAN , JJ., who concur in the result in the following memorandum: Although we concur in the result reached by the majority, we do so on different grounds with respect to the mandatory fees and surcharges. Initially, we agree with the majority that defendant executed a valid, general, and unrestricted waiver of his right to appeal. Contrary to defendant's contention, a juvenile offender can waive his or her right to appeal (see e.g. People v. Abreu , 71 A.D.3d 534, 534, 895 N.Y.S.2d 824 [1st Dept. 2010], lv denied 15 N.Y.3d 746, 906 N.Y.S.2d 819, 933 N.E.2d 218 [2010] ; People v. Gaines , 234 A.D.2d 712, 712, 651 N.Y.S.2d 643 [3d Dept. 1996], lv denied 89 N.Y.2d 1011, 658 N.Y.S.2d 250, 680 N.E.2d 624 [1997] ), and plea courts have no automatic obligation to explain the nature of the right to appeal in greater detail to such offenders (see generally People v. Sanders , 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ).
As the majority determines, defendant's valid appeal waiver forecloses his challenge to the severity of his sentence. In the typical case, defendant's valid appeal waiver would also preclude appellate review of his challenge to the legality of the fees and surcharges (see People v. Wilson , 168 A.D.3d 889, 890, 89 N.Y.S.3d 919 [2d Dept. 2019] ; People v. Logan , 125 A.D.3d 688, 688, 999 N.Y.S.2d 753 [2d Dept. 2015] ; People v. Morales , 119 A.D.3d 1082, 1084, 990 N.Y.S.2d 144 [3d Dept. 2014], lv denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014] ; People v. Frazier , 57 A.D.3d 1460, 1461, 869 N.Y.S.2d 826 [4th Dept. 2008], lv denied 12 N.Y.3d 783, 879 N.Y.S.2d 60, 906 N.E.2d 1094 [2009] ). Nevertheless, by conceding that the fees and surcharges were improperly assessed and by affirmatively asking us to vacate those assessments, the People here have effectively "forfeit[ed] or waive[d]" defendant's appeal waiver on that limited issue ( Garza v. Idaho , ––– U.S. ––––, 139 S.Ct. 738, 745, ––– L.Ed.2d –––– [2019] ; see United States v. Story , 439 F.3d 226, 231 [5th Cir. 2006] ). We therefore agree that the fees and surcharges, which are undisputedly illegal in this case (see Penal Law §§ 60.00[2] ; 60.10; People v. Stump , 100 A.D.3d 1457, 1457–1458, 953 N.Y.S.2d 441 [4th Dept. 2012] ), should be vacated, and we thus join the majority's disposition because it accomplishes that result.