People v Johnson, 2024 NY Slip Op 05414 [231 AD3d 679]

October 31, 2024

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Elik Johnson, Appellant.

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Robert Butlien of counsel), for respondent Judgment, Supreme Court, New York County (Cori Weston, J.), rendered August 18, 2023, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him to three years of probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the mandatory surcharge and fees imposed at sentencing, and otherwise affirmed.

The record demonstrates that defendant validly waived his right to appeal ( People v Lopez , 6 NY3d 248 , 256 [2006]). Contrary to defendant’s contention, there was nothing misleading about the court’s colloquy, and defendant confirmed that he had discussed the written waiver with his counsel ( see People v Thomas , 34 NY3d 545 , 560 [2019]). Thus, the valid waiver of appeal forecloses review of defendant’s excessive sentence claim ( see Lopez , 6 NY3d at 256). In any event, we perceive no basis for reducing the sentence.

Based on our own interest of justice powers, we vacate the mandatory surcharge and fees imposed on defendant at sentencing ( see People v Chirinos , 190 AD3d 434 [1st Dept 2021]). We note that the People do not oppose this relief. Concur—Manzanet-Daniels, J.P., Friedman, Gesmer, Shulman, Michael, JJ..