Opinion
16017-16017A Ind. Nos. 520/17, 893/17, 3334/16 Case No. 2018–4479
05-26-2022
The PEOPLE of the State of New York, Respondent, v. Nicholas DIAZ, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Reva Grace Phillips of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Reva Grace Phillips of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Shulman, Rodriguez, Pitt, JJ.
Judgments, Supreme Court, Bronx County (Shari R. Michels, J.), rendered January 22, 2018, convicting defendant, upon his pleas of guilty, of attempted robbery in the second degree, attempted burglary in the second degree and attempted criminal possession of a forged instrument in the second degree, and sentencing him to an aggregate term of three years, unanimously affirmed.
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] ), which forecloses review of his argument that the mandatory surcharge and fees imposed at sentencing should be waived pursuant to CPL 420.35(2–a) (see People v. Montanez, 203 A.D.3d 755, 160 N.Y.S.3d 659 [2d Dept. 2022] ). "A defendant's valid waiver of the right to appeal includes waiver of the right to invoke the Appellate Division's interest-of-justice jurisdiction" ( People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Accordingly, we need not reach the question of whether this statute applies retroactively to defendant (see People v. Utsey, 7 N.Y.3d 398, 404, 822 N.Y.S.2d 475, 855 N.E.2d 791 [2006] ; People v. Behlog, 74 N.Y.2d 237, 239, 544 N.Y.S.2d 804, 543 N.E.2d 69 [1989] ), who was sentenced before its enactment (see People v. Escalona, 202 A.D.3d 451, 158 N.Y.S.3d 583 [1st Dept. 2022] ).