Opinion
316 KA 17–00183
06-14-2019
The PEOPLE of the State of New York, Respondent, v. ANTONIO J., Defendant–Appellant. (Appeal No. 1.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the adjudication so appealed from is unanimously modified on the law by vacating the surcharge, crime victim assistance fee, and sentence, and as modified the adjudication is affirmed, and the matter is remitted to Erie County Court for resentencing.
Memorandum: In appeal No. 1, defendant appeals from a youthful offender adjudication based upon his plea of guilty of robbery in the first degree ( Penal Law § 160.15[4] ) and, in appeal No. 2, he appeals from a youthful offender adjudication based upon his plea of guilty of robbery in the second degree (§ 160.10[2][b] ). On each adjudication, County Court imposed an indeterminate sentence of 1 to 3 years, a surcharge, and a crime victim assistance fee. The court also ordered the sentence imposed in the adjudication in appeal No. 2 to run consecutively to the sentence imposed in the adjudication in appeal No. 1.
We reject the contention of defendant in appeal No. 1 that the waiver of the right to appeal is invalid on the ground that the court failed to inform him specifically that his general waiver of the right to appeal encompassed the court's suppression rulings (see People v. Brand, 112 A.D.3d 1320, 1321, 976 N.Y.S.2d 906 [4th Dept. 2013], lv denied 23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] ; see also People v. Joubert, 158 A.D.3d 1314, 1315, 68 N.Y.S.3d 375 [4th Dept. 2018], lv denied 31 N.Y.3d 1014, 78 N.Y.S.3d 284, 102 N.E.3d 1065 [2018] ; see generally People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ). Contrary to defendant's contention, his valid waiver encompasses his challenges to those rulings (see Kemp, 94 N.Y.2d at 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ).
The People correctly concede in each appeal that the surcharge and crime victim assistance fee must be vacated because defendant is a juvenile offender (see People v. Dennis R., 159 A.D.3d 1444, 1444, 70 N.Y.S.3d 114 [4th Dept. 2018], lv denied 31 N.Y.3d 1080, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018] ; see also Penal Law §§ 60.00[2] ; 60.10; People v. Sanchez, 165 A.D.3d 1623, 1624, 82 N.Y.S.3d 920 [4th Dept. 2018] ; People v. Stump, 100 A.D.3d 1457, 1458, 953 N.Y.S.2d 441 [4th Dept. 2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ). We therefore modify the adjudication in each appeal accordingly.
The People further correctly concede in each appeal that the aggregate duration of the two consecutive sentences, i.e., 2 to 6 years, is illegal (see Penal Law §§ 60.02[2] ; 70.00[2][e]; [3][b]; People v. Christopher P., 136 A.D.3d 481, 482, 26 N.Y.S.3d 6 [1st Dept. 2016] ; People v. Jorge N.T., 70 A.D.3d 1456, 1457–1458, 894 N.Y.S.2d 625 [4th Dept. 2010], lv denied 14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012 [2010] ; People v. Christopher T., 48 A.D.3d 1131, 1132, 850 N.Y.S.2d 797 [4th Dept. 2008] ), and that defendant's challenge to the illegal sentence in each appeal survives his waiver of his right to appeal and does not require preservation (see People v. Davis, 115 A.D.3d 1239, 1239, 982 N.Y.S.2d 272 [4th Dept. 2014] ). We therefore further modify the adjudication in each appeal by vacating the sentence, and we remit the matter to County Court for resentencing on both adjudications (see generally People v. Slattery, 81 A.D.3d 1415, 1416, 916 N.Y.S.2d 871 [4th Dept. 2011] ; People v. Bernell, 71 A.D.3d 1516, 1516, 896 N.Y.S.2d 705 [4th Dept. 2010] ).
Finally, we note that the certificate of conviction incorrectly states that the duration of the order of protection issued in the adjudication in appeal No. 1 is eight years, and it must therefore be amended to reflect the duration of seven years, as recited by the court at the time of sentencing and as set forth in the order of protection itself (see generally People v. Meza, 141 A.D.3d 1110, 1110, 33 N.Y.S.3d 810 [4th Dept. 2016], lv denied 28 N.Y.3d 934, 40 N.Y.S.3d 362, 63 N.E.3d 82 [2016] ; People v. Saxton, 32 A.D.3d 1286, 1286–1287, 821 N.Y.S.2d 353 [4th Dept. 2006] ).