| People v King |
| 2008 NY Slip Op 10397 [57 AD3d 1495] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Clayton King,Appellant. (Appeal No. 1.) |
—[*1] Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered April 25, 2007.The judgment convicted defendant, upon his plea of guilty, of felony driving while intoxicated andaggravated unlicensed operation of a motor vehicle in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matter ofdiscretion in the interest of justice and on the law by reducing the mandatory surcharge to $250 and asmodified the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea ofguilty of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1][c] [former (i)]) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3] [a] [i]) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty ofone count each of those same crimes. Contrary to the contention of defendant in each appeal, hiswaiver of the right to appeal was voluntarily, knowingly, and intelligently entered (see People v Lopez, 6 NY3d 248, 256[2006]; People v Lococo, 92 NY2d 825, 827 [1998]). The challenge by defendant in eachappeal to the severity of the sentence imposed is encompassed by his valid waiver of the right to appeal(see Lopez, 6 NY3d at 256; People v Hidalgo, 91 NY2d 733, 737 [1998];People v Allen, 82 NY2d 761, 763 [1993]). Although the contention of defendant that CountyCourt erred in ordering him to pay a mandatory surcharge of $275 with respect to each judgment ofconviction survives his valid waiver of the right to appeal (see People v Figueroa, 17 AD3d 1130 [2005], lv denied 5NY3d 788 [2005]), defendant failed to preserve it for our review (see People v Quishana M., 50 AD3d 1513 [2008], lv denied 10NY3d 938 [2008]; People v Saladeen,12 AD3d 1179, 1180-1181 [2004], lv denied 4 NY3d 767 [2005]). We neverthelessexercise our power to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). The People correctly concede that, pursuant to Vehicle and Traffic Law§ 1809 (1) (b) (former [i]), the proper mandatory surcharge is $250. We therefore modify thejudgment in each appeal by reducing the mandatory surcharge accordingly. Present—Hurlbutt,J.P., Centra, Fahey and Peradotto, JJ.