Crimes - Appeal - Valid Appeal Waiver - Colloquy Clarified Ambiguity as to Whether Waiver Precluded Challenge to Illegality of Sentence

Judgment, Supreme Court, Bronx County (Audrey E. Stone, J.), rendered August 23, 2023, convicting defendant, upon his plea of guilty, of criminal possession of a firearm, and sentencing him to a five-year term of probation, 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.

The record demonstrates that defendant had "a full appreciation of the consequences" of the waiver of the right to appeal, and that the waiver was voluntary under the "totality of the circumstances" (People v Williams, 227 AD3d 480, 481 [1st Dept 2024] [internal quotation marks omitted], lv denied 42 NY3d 1022 [2024]; People v Thomas, 34 NY3d 545, 559-560 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]). "It is not dispositive that the court conducted this [appeal waiver] colloquy only after defendant's allocution" (People v Nunez, 220 AD3d 597, 598 [1st Dept 2023], lv denied 41 NY3d 1004 [2024]; see also People v Bryant, 28 NY3d 1094, 1096 [2016]). To the extent there was any ambiguity whether the waiver precluded a challenge to the illegality of the sentence, the court clarified that the appeal waiver did not apply to such a claim in its colloquy, and the written waiver reiterated the same (see e.g. People v Ramos, 7 NY3d 737, 738 [2006]).

In any event, we perceive no basis for reducing the sentence.

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. Concur—Moulton, J.P., Mendez, Rodriguez, Pitt-Burke, Rosado, JJ.