People v. Galvan

191 N.Y.S.3d 733, 217 A.D.3d 964, 2023 NY Slip Op 03476

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 2023
• Docket: Ind. No. 591/16
• Status: Published

Opinion

People v Galvan (2023 NY Slip Op 03476)

People v Galvan

2023 NY Slip Op 03476

Decided on June 28, 2023

Appellate Division, Second 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 on June 28, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
VALERIE BRATHWAITE NELSON
CHERYL E. CHAMBERS
HELEN VOUTSINAS, JJ.

2017-11103
(Ind. No. 591/16)

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

v

Miguel Galvan, appellant.

Paul N. Weber, Cornwall, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, NY (Edward D. Saslaw of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered August 31, 2017, convicting him of operating as a major trafficker, upon his plea of guilty, and imposing sentence which included a fine in the sum of $30,000.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating so much of the sentence as imposed a fine in the sum of $30,000; as so modified, the judgment is affirmed.

The defendant's waiver of his right to appeal does not preclude appellate review of his contention that the County Court improperly imposed an enhanced sentence (see People v Ruiz, 209 AD3d 1042, 1043; People v Baker, 204 AD3d 1471, 1471; People v Gregory, 140 AD3d 1088, 1089). Although the defendant's contention is unpreserved for appellate review (see CPL 470.05[2]; People v Andre, 168 AD3d 757, 757; People v Martin, 151 AD3d 753, 753), we reach the issue in the exercise of our interest of justice jurisdiction (see People v Ruiz, 209 AD3d at 1043; People v Gregory, 140 AD3d at 1089).

The County Court improperly enhanced the defendant's sentence by imposing a fine that was not part of the negotiated plea agreement (see People v Ruiz, 209 AD3d at 1043; People v Sims, 146 AD3d 820, 821; People v Gregory, 140 AD3d at 1089). The relief the defendant requests in connection with this issue is vacatur of so much of his sentence as imposed the fine. Under the circumstances of this case, we deem it appropriate to vacate so much of the defendant's sentence as imposed a fine, so as to conform the sentence imposed to the promise made to the defendant in exchange for his plea of guilty (see People v Ruiz, 209 AD3d at 1043; People v Sims, 146 AD3d at 821; People v Gregory, 140 AD3d at 1089).

The defendant's remaining contentions are academic in light of the foregoing.

CONNOLLY, J.P., BRATHWAITE NELSON, CHAMBERS and VOUTSINAS, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court