People v. Purdue

from a judgment of the Supreme Court, Erie County (Mario J. Rossetti,. A.J.), rendered September 21, 2001. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing the mandatory surcharge to $150 and the crime victim assistance fee to $5 and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [4]). Contrary to the contention of defendant, his waiver of the right to appeal was voluntary, knowing and intelligent (see generally People v Lococo, 92 NY2d 825, 827 [1998]; People v Allen, 82 NY2d 761, 763 [1993]). Supreme Court advised defendant that it would not impose a sentence of imprisonment greater than eight years, and thus his waiver of the right to appeal encompasses his present contention that the sentence is unduly harsh or severe (see Lococo, 92 NY2d at 827). As the People correctly concede, however, the court erred in imposing a mandatory surcharge in the amount of $200 and a crime victim assistance fee in the amount of $10 inasmuch as it is undisputed that the crime herein was committed before Penal Law § 60.35 (1) (a) was amended and the amount of those fees was thereby raised. We therefore modify the judgment by reducing the mandatory surcharge to $150 and the crime victim assistance fee to $5. Present—Pigott, Jr., PJ., Pine, Wisner, Scudder and Lawton, JJ.