People v. Jerome H. ( 2023 )

People v Jerome H. (2023 NY Slip Op 06337)

People v Jerome H.

2023 NY Slip Op 06337

Decided on December 12, 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: December 12, 2023
Before: Kern, J.P., Singh, Kennedy, Mendez, Rodriguez, JJ.

Ind. No. 2045/13 Appeal No. 1185 Case No. 2020-01050

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

v

Jerome H., Defendant-Appellant.

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

Darcel D. Clark, District Attorney, Bronx (Elliott R. Hamilton of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered December 3, 2019, convicting defendant, upon his plea of guilty, of robbery in the first degree, adjudicating him a youthful offender, and sentencing him to a term of one year, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed on defendant at sentencing, and otherwise affirmed.

Defendant's claim that his plea was invalid because the court failed to inquire about a possible affirmative defense to first-degree robbery, where the court had been informed that the gun alleged to have been used in the robbery may have been a BB gun, does not come within the narrow exception to the preservation requirement (see People v Toxey, 86 NY2d 725 [1995]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Brown, 147 AD3d 570, 571 [1st Dept 2017], lv denied 29 NY3d 1029 [2017]), and we decline to review this unpreserved claim in the interest of justice.

Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing (see People v Chirinos, 190 AD3d 434 [1st Dept 2021]). We note that the People do not oppose this relief.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 12, 2023