Opinion
1151 KA 16–01964
03-22-2019
The PEOPLE of the State of New York, Respondent, v. Joshua COLEMAN, Defendant–Appellant. (Appeal No. 1.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal possession of a forged instrument in the second degree ( Penal Law § 170.25 ). In appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, three counts of criminal possession of a forged instrument in the second degree (id. ). We affirm in both appeals.Defendant's contention in both appeals that County Court imposed certain surcharges and fees in violation of Penal Law § 60.35 is not preserved for our review and, in any event, it lacks merit because, at the time of sentencing, restitution had not yet "been made" ( People v. Ziolkowski, 9 A.D.3d 915, 915, 779 N.Y.S.2d 708 [4th Dept. 2004], lv denied 3 N.Y.3d 683, 784 N.Y.S.2d 22, 817 N.E.2d 840 [2004] [internal quotation marks omitted]; see § 60.35[6] ).
Contrary to defendant's further contention, he validly waived his right to appeal from both judgments (see 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] ; People v. Oberdorf, 136 A.D.3d 1291, 1292, 24 N.Y.S.3d 545 [4th Dept. 2016], lv denied 27 N.Y.3d 1073, 38 N.Y.S.3d 843, 60 N.E.3d 1209 [2016] ; People v. Ripley, 94 A.D.3d 1554, 1555, 942 N.Y.S.2d 919 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 359, 973 N.E.2d 769 [2012] ; People v. Frank, 258 A.D.2d 900, 900, 685 N.Y.S.2d 555 [4th Dept. 1999], lv denied 93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 510 [1999] ; see generally People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), and that waiver forecloses his challenge in each appeal to the severity of his sentences (see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
Finally, we note that the uniform sentence and commitment form in each appeal contains an incorrect offense date and must therefore be amended to reflect the correct dates set forth in the superior court information and indictment, respectively (see People v. Southard, 163 A.D.3d 1461, 1462, 76 N.Y.S.3d 869 [4th Dept. 2018] ).
All concur except NEMOYER , J., who concurs in the result in the following memorandum: I join the majority's disposition and its reasoning in all respects except its analysis of defendant's challenge to the mandatory fees and surcharges. In my view, because the various fees and surcharges required by Penal Law § 60.35 are not part of a criminal sentence (see People v. Guerrero, 12 N.Y.3d 45, 47, 876 N.Y.S.2d 687, 904 N.E.2d 823 [2009] ), defendant's valid, general, and unrestricted waiver of his right to appeal forecloses our review of his challenge to the legality of those assessments in this case (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] ). I would go no further than that.