People v S.J., 2024 NY Slip Op 02993 [227 AD3d 626]
May 30, 2024
Appellate Division, First Department
[*1]
The People of the State of New York, Respondent,
v
S.J., Appellant.
Twyla Carter, The Legal Aid Society, New York (Sylvia Lara Altreuter of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Caroline S. Williamson of counsel), for respondent.
Judgments, Supreme Court, New York County (Ellen N. Biben, J.), rendered October 11, 2022, as amended October 20, 2023, and November 28, 2023, convicting defendant, upon his pleas of guilty, of criminal possession of a weapon in the second degree under indictment No. 1491/21, rape in the first degree under indictment No. 1987/21, and gang assault in the second degree and assault in the second degree under Superior Court Information (SCI) No. 72001/22, adjudicating him a youthful offender on the convictions under indictment No. 1987/21 and SCI No. 72001/22, and sentencing him to concurrent terms of 1 to 3 years on each of those convictions and 3 1/2 years, followed by 5 years of postrelease supervision, on the conviction under indictment No. 1491/21, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed at sentencing under indictment No. 1491/21, and otherwise affirmed.
Defendant made a valid waiver of his right to appeal ( see People v Thomas , 34 NY3d 545 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]; People v Bryant , 28 NY3d 1094 , 1096 [2016]). The court’s oral colloquy with defendant, combined with the written waiver signed by defendant after consultation with counsel, satisfied the requirements of a valid waiver. The waiver forecloses review of defendant’s challenge to the denial of youthful offender treatment ( see People v Pacherille , 25 NY3d 1021 , 1023-1024 [2015]) and his excessive sentence claim with respect to the weapon possession conviction under indictment No. 1491/21. In any event, we find that the court providently exercised its discretion in denying youthful offender treatment, given defendant’s arrest for grand larceny in the fourth degree while awaiting sentencing, despite the plea court’s warning that defendant could be denied youthful offender status if he were arrested for another crime. We also perceive no basis for reducing the five-year period of postrelease supervision.
Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing under indictment No. 1491/21 ( 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, Kapnick, Gesmer, Rosado, JJ..