People v. Colon ( 2023 )

People v Colon (2023 NY Slip Op 04827)

People v Colon

2023 NY Slip Op 04827

Decided on September 28, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: September 28, 2023
Before: Webber, J.P., Friedman, González, Rodriguez, Pitt-Burke, JJ.

Ind. No. 246/18 Appeal No. 652 Case No. 2018-4807

[*1]The People of the State of New York, Respondent,

v

Kenneth Colon, Defendant-Appellant.

Twyla Carter, The Legal Aid Society, New York (Noah Sherr Breslau of counsel), for appellant.

Judgment, Supreme Court, Bronx County (Raymond L. Bruce, J.), rendered May 21, 2018, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a prison term of two years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed at sentencing, and otherwise affirmed.

Defendant's waiver of his right to appeal was not made knowingly, intelligently and voluntarily (see People v Thomas, 34 NY3d 545, 559 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]; People v Johnson, 14 NY3d 483, 486-487 [2010]). Although there is no mandatory litany that must be used to obtain a valid waiver of the right to appeal (Johnson, 14 NY3d at 486), based on the court's explanation, a lay person, particularly one who, like defendant, had no prior felony convictions, might not understand that the right to appeal is not limited to review of trial errors, notwithstanding the detailed written waiver executed by defendant (compare People v Ramos, 7 NY3d 737, 738 [2006]).

Based on our own interest of justice powers, we vacate the surcharge and fees (see People v Chirinos, 190 AD3d 434 [1st Dept 2021]). We note that there is no opposition by the People.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 28, 2023