Crimes - Appeal - Invalid Waiver

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J., at plea; Judith Lieb, J., at sentencing), rendered February 15, 2023, convicting defendant of attempted burglary in the second degree, and sentencing him to a term of three years, 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.

Under the totality of the circumstances, defendant's waiver of the right to appeal was invalid (see People v Thomas, 34 NY3d 545, 559 [2019], cert denied 589 US 1302 [2020]). The court's colloquy failed to advise defendant of the claims which would survive the waiver, and incorrectly informed him that if it found that he violated the terms of the plea, such finding could not be appealed (see People v Cruz, 221 AD3d 465, 465 [1st Dept 2023]; see also People v Patterson, 106 AD3d 757, 757 [2d Dept 2013], lv denied 21 NY3d 1018 [2013]). Nevertheless, we find that the court providently exercised its discretion in denying defendant youthful offender status, and defendant has set forth no basis for this Court to substitute a youthful offender adjudication in the interest of justice (see People v Roberts, 228 AD3d 488, 489 [1st Dept 2024], lv denied 42 NY3d 1054 [2024]).

Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing (see People v Martinez, 231 AD3d 556, 557 [1st Dept 2024]). We note that the People do not oppose this relief. Concur—Kennedy, J.P., Scarpulla, Kapnick, González, Rodriguez, JJ.