| People v Nunez |
| 2023 NY Slip Op 05449 [220 AD3d 597] |
| October 26, 2023 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Matthew Nunez, Appellant. |
Twyla Carter, The Legal Aid Society, New York (Clara Hammond-Oakley ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Oliver Lee of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Steven Hornstein, J.), rendered December12, 2019, convicting defendant, upon his plea of guilty, of criminal possession of afirearm, and sentencing him to 5 years' probation, unanimously modified, as a matter ofdiscretion in the interest of justice, to the extent of vacating the surcharge and feesimposed on defendant at sentencing, and otherwise affirmed.
Defendant made a valid waiver of his right to appeal, which forecloses review of hisexcessive sentence claim. The court's colloquy tracked the model colloquy, which hasbeen endorsed by the Court of Appeals (see People v Thomas, 34 NY3d 545, 567 [2019], certdenied 589 US —, 140 S Ct 2634 [2020]). The court properly explained thenature of the right to appeal (including the right to counsel on appeal), clarified thatcertain claims survive the waiver, and distinguished between the trial rights automaticallywaived by pleading guilty and the waiver of the right to appeal as a condition of theparticular plea agreement. It is not dispositive that the court conducted this colloquy onlyafter defendant's allocution (seee.g. People v Bryant, 28 NY3d 1094, 1096 [2016]).
In any event, we perceive no basis for reducing the sentence.
Based on our own interest of justice powers, we vacate the surcharge and feesimposed on defendant at sentencing (see People v Chirinos, 190 AD3d 434 [1st Dept 2021]). Wenote that the People do not oppose this relief. Concur—Webber, J.P., Moulton,González, Kennedy, JJ.