People v. Martinez , 2024 NY Slip Op 05071 ( 2024 )

People v Martinez (2024 NY Slip Op 05071)

People v Martinez

2024 NY Slip Op 05071

Decided on October 15, 2024

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: October 15, 2024
Before: Singh, J.P., Gesmer, González, Mendez, Rodriguez, JJ.

Ind. No. 363/19, 600/20, 71233/22 Appeal No. 2797-2798 Case No. 2023-03191, 2023-03200, 2023-03201

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

v

John Martinez, Defendant-Appellant.

Jenay Nurse Guilford, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Vincent Rivellese of counsel), for respondent.

Judgments, Supreme Court, Bronx County (Joseph A. McCormack, J.), rendered June 7, 2023, as amended June 14, 2023, convicting defendant, upon his pleas of guilty, of attempted gang assault in the first degree, criminal possession of a controlled substance in the third degree, and conspiracy in the fourth degree, and sentencing him to an aggregate prison term of four years, followed by five years of postrelease supervision, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the mandatory surcharge and fees imposed at sentencing on the attempted gang assault conviction, and otherwise affirmed.

Defendant made a valid waiver of his right to appeal, foreclosing appellate review of his claim that his sentence is excessive (see People v Thomas, 34 NY3d 545 [2019], cert denied 589 US __, 140 S Ct 2634 [2020]). We perceive no basis for reducing the sentence.

Pursuant to our own interest of justice powers, we vacate the mandatory surcharge and fees imposed on defendant at sentencing on the attempted gang assault conviction, under indictment No. 363/19 (see People v Coleman, 209 AD3d 501, 502 [1st Dept 2022], lv denied 39 NY3d 1153 [2023]). 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: October 15, 2024