Opinion
91 KA 20-00564
03-18-2022
The PEOPLE of the State of New York, Respondent, v. Danielle WEBBER, Defendant-Appellant.
TUPCHIK LEGAL GROUP, PLLC, BUFFALO (LANA V. TUPCHIK OF COUNSEL), FOR DEFENDANT-APPELLANT. LORI P. RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.
TUPCHIK LEGAL GROUP, PLLC, BUFFALO (LANA V. TUPCHIK OF COUNSEL), FOR DEFENDANT-APPELLANT.
LORI P. RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the surcharge to 5% of the amount of restitution and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a plea of guilty of two counts of assault in the first degree ( Penal Law § 120.10 [1], [3] ) and one count of criminal possession of a weapon in the fourth degree (§ 265.01 [2]). Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude her challenges to the youthful offender determination or to the severity of the sentence (see People v. Hahn , 199 A.D.3d 1467, 1467, 154 N.Y.S.3d 624 [4th Dept. 2021] ; People v. Wilson , 197 A.D.3d 1006, 1007, 153 N.Y.S.3d 371 [4th Dept. 2021], lv denied 37 N.Y.3d 1100, 156 N.Y.S.3d 780, 178 N.E.3d 427 [2021] ), we conclude that those challenges lack merit.
We reject defendant's contention that County Court failed to make the necessary determination whether she was eligible for youthful offender treatment. "Although a youth convicted of an armed felony is eligible for youthful offender status only where the court determines that there are mitigating circumstances bearing directly upon the manner in which the crime was committed or that the defendant's participation in the crime was relatively minor" ( People v. Dhillon , 143 A.D.3d 734, 735, 39 N.Y.S.3d 181 [2d Dept. 2016] ; see CPL 720.10 [3] ; People v. Middlebrooks , 25 N.Y.3d 516, 524-526, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015] ), here, no such determination was required inasmuch as defendant was not convicted of an armed felony and was therefore an eligible youth (see CPL 1.20 [41] ; 720.10 [1], [2] [a] [ii]; People v. Crimm , 140 A.D.3d 1672, 1673, 34 N.Y.S.3d 285 [4th Dept. 2016] ; see also People v. Meridy , 196 A.D.3d 1, 6, 147 N.Y.S.3d 287 [4th Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 698, 172 N.E.3d 810 [2021] ). We further conclude that the court did not abuse its discretion in denying defendant's request for youthful offender status (see People v. McDaniels, 19 A.D.3d 1071, 1072, 796 N.Y.S.2d 484 [4th Dept. 2005], lv denied 5 N.Y.3d 830, 804 N.Y.S.2d 45, 837 N.E.2d 744 [2005] ; People v. Weston , 275 A.D.2d 915, 915, 715 N.Y.S.2d 175 [4th Dept. 2000], lv denied 95 N.Y.2d 971, 722 N.Y.S.2d 489, 745 N.E.2d 409 [2000] ) and we decline to grant defendant's request to exercise our interest of justice jurisdiction to afford her that status (see People v. Lang , 178 A.D.3d 1362, 1363, 112 N.Y.S.3d 632 [4th Dept. 2019] ; Weston , 275 A.D.2d at 915, 715 N.Y.S.2d 175 ).
Contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe.
Finally, defendant's contention that the court erred in imposing the maximum restitution surcharge of 10% would survive even a valid waiver of the right to appeal where, as here, the court fails to advise the defendant before waiving the right to appeal of the potential range of the surcharge that could be imposed as part of the requirement to pay restitution (see People v. Schultz , 117 A.D.3d 1560, 1560, 985 N.Y.S.2d 388 [4th Dept. 2014], lv denied 23 N.Y.3d 1067, 994 N.Y.S.2d 326, 18 N.E.3d 1147 [2014] ). Although defendant failed to preserve that contention for our review (see People v. Kosty , 122 A.D.3d 1408, 1409, 996 N.Y.S.2d 449 [4th Dept. 2014], lv denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 [2015] ; Schultz , 117 A.D.3d at 1560-1561, 985 N.Y.S.2d 388 ; People v. Kirkland , 105 A.D.3d 1337, 1338, 963 N.Y.S.2d 793 [4th Dept. 2013], lv denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856 [2013] ), we nevertheless exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ). We conclude that the court erred in imposing the 10% surcharge because there was no " ‘filing of an affidavit of the official or organization designated pursuant to [ CPL 420.10 (8) ] demonstrating that the actual cost of the collection and administration of restitution ... in [this] particular case exceeds five percent of the entire amount of the payment or the amount actually collected’ " ( Schultz , 117 A.D.3d at 1561, 985 N.Y.S.2d 388, quoting Penal Law § 60.27 [8] ). We therefore modify the judgment accordingly.