People v Rucker, 2024 NY Slip Op 00052 [223 AD3d 440]

January 9, 2024

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Benjamin Rucker, Appellant.

Twyla Carter, The Legal Aid Society, New York (Stephen Nemec of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Rafael Curbelo of counsel), for respondent.

Judgment, Supreme Court, Bronx County (David Kirschner, J., at plea; Bahaati E. Pitt, J., at sentencing), rendered February 1, 2018, convicting defendant of possession of a stolen vehicle (Vehicle and Traffic Law § 426), and sentencing him to a term of six months, unanimously modified, on the law, to the extent of reducing the mandatory surcharge and crime victim assistance fee imposed at sentencing to $55 and $5, respectively, and otherwise affirmed.

Defendant made a valid waiver of his right to appeal, and we reject his challenges to the validity of the waiver ( see People v Thomas , 34 NY3d 545 , 564 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]).

However, as conceded by the People, the court imposed the surcharge and fees set forth in the Penal Law instead of those applicable to defendant’s Vehicle and Traffic Law conviction. Accordingly, we modify the mandatory surcharge and crime victim assistance fee imposed at sentencing ( see People v Cutts , 209 AD3d 474 [1st Dept 2022], lv denied 39 NY3d 961 [2022]). Concur—Webber, J.P., Gesmer, Kennedy, Rosado, Michael, JJ..