Opinion
16286 Ind. No. 2459/17 Case No. 2019-2869
09-27-2022
The PEOPLE of the State of New York, Respondent, v. Tony SANTIAGO, Defendant-Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Naila S. Siddiqui 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 (Naila S. Siddiqui of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Reva Grace Phillips of counsel), for respondent.
Manzanet-Daniels, J.P., Kapnick, Friedman, Scarpulla, Mendez, JJ.
Judgment, Supreme Court, Bronx County (George Villegas, J.), rendered April 24, 2018, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of two years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal (see People v. Thomas , 34 N.Y.3d 545, 559, 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 the harshness or excessiveness of his sentence. As an alternative holding, we find no basis for reducing the sentence, including the two-year term of post-release supervision.
Defendant's waiver of the right to appeal also precludes review of his argument that the mandatory surcharge and fees imposed should be vacated pursuant to CPL 420.35 (2-a) (see People v. Count C. , 206 A.D.3d 496, 168 N.Y.S.3d 320 [1st Dept. 2022], citing People v. Montanez , 203 A.D.3d 755, 160 N.Y.S.3d 659 [2d Dept. 2022], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 395, 188 N.E.3d 593 [2022] ). As an alternative holding, we find no basis to waive defendant's surcharge and fees in the interest of justice (see People v. Whitfield , 198 A.D.3d 446, 447, 152 N.Y.S.3d 571 [1st Dept. 2021], lv denied 37 N.Y.3d 1100, 156 N.Y.S.3d 780, 178 N.E.3d 427 [2021] ), and we find it unnecessary to address the retroactivity of this statute (see People v. Escalona , 202 A.D.3d 451, 158 N.Y.S.3d 583 [1st Dept. 2022], lv denied 38 N.Y.3d 1070, 171 N.Y.S.3d 458, 191 N.E.3d 410 [2022] ).