Opinion
2018–14318 S.C.I. No. 2220/18
05-04-2022
The PEOPLE, etc., respondent, v. Jalen DOUGLAS, appellant.
Patricia Pazner, New York, NY (Lynn W.L. Fahey of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel; Theresa Yuan on the brief), for respondent.
Patricia Pazner, New York, NY (Lynn W.L. Fahey of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel; Theresa Yuan on the brief), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Toni M. Cimino, J., at plea; Gia L. Morris, J., at sentence), rendered October 22, 2018, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating so much of the sentence as imposed a mandatory surcharge, DNA databank fee, and crime victim assistance fee; as so modified, the judgment is affirmed.
Contrary to the People's contention, the record does not demonstrate that the defendant made a knowing, intelligent, and voluntary waiver of his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The written appeal waiver mischaracterized the nature of the waiver as an absolute bar to the taking of a direct appeal and a forfeiture of the attendant right to counsel and poor person relief (see People v. Bisono, 36 N.Y.3d 1013, 1015–1016, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ), and the Supreme Court's brief oral colloquy with the defendant did not address or otherwise cure the mischaracterizations and inaccuracies in the written waiver (see People v. Thomas, 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Accordingly, the purported appeal waiver does not bar appellate review of the defendant's contention that the sentence imposed was excessive.
The sentence imposed was not excessive (see CPL 470.15[6][b] ; People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 ; People v. Thompson, 60 N.Y.2d 513, 519, 470 N.Y.S.2d 551, 458 N.E.2d 1228 ).
However, as consented to by the People, and pursuant to the exercise of our interest of justice jurisdiction, we modify the judgment by vacating so much of the sentence as imposed a mandatory surcharge and fees (see CPL 420.35[2–a][c] ; People v. Santillan, 200 A.D.3d 1074, 1075, 155 N.Y.S.3d 821 ; People v. Rudd, 200 A.D.3d 912, 155 N.Y.S.3d 360 ; People v. Dyshawn B., 196 A.D.3d 638, 152 N.Y.S.3d 131 ).
BRATHWAITE NELSON, J.P., RIVERA, MILLER and ZAYAS, JJ., concur.