| People v Avila |
| 2022 NY Slip Op 00361 |
| Decided on January 20, 2022 |
| 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: January 20, 2022
Before: Kapnick, J.P., Singh, Moulton, Shulman, Higgitt, JJ.
SCI No. 3807/17 Appeal No. 15116 Case No. 2019-02040
v
Kevin Avila, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivelesse of counsel), for respondent.
Judgment, Supreme Court, New York County (Kevin B. McGrath, J. at plea; Curtis J. Farber, J. at sentencing), rendered December 14, 2018, convicting defendant of aggravated unlicensed operation of a motor vehicle in the first degree, and sentencing him to a term of 1⅓ to 4 years and a $500 fine, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the fee and surcharges imposed at sentencing, and otherwise affirmed.
Defendant made a valid waiver of his right to appeal (see People v Thomas, 34 NY3d 545 [2019], cert denied 589 US —&mdash, 140 S Ct 2634 [2020]; People v Bryant, 28 NY3d 1094, 1096 [2016]), which forecloses review of his excessive sentence claim. In any event, we perceive no basis for reducing the sentence. However, based on our own interest of justice powers and the People's consent, we vacate the surcharge and fees imposed at sentencing (see People v Chirinos, 190 AD3d 434 [1st Dept 2021]). This does not apply to the $500 fine.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: January 20, 2022