People v. Nicholson

Appellate Division of the Supreme Court of New York

People v. Nicholson

15 A.D.3d 237, 789 N.Y.S.2d 153, 2005 N.Y. App. Div. LEXIS 1487

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 10, 2005

StatusPublished

Cited by5 cases

This text of 15 A.D.3d 237 (People v. Nicholson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Nicholson, 15 A.D.3d 237, 789 N.Y.S.2d 153, 2005 N.Y. App. Div. LEXIS 1487 (N.Y. Ct. App. 2005).

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Opinion

Judgment, Supreme Court, Bronx County (Steven Lloyd Barrett, J.), rendered May 12, 2003, convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him to a term of eight years, and imposing a mandatory surcharge of $200 and a crime victim assistance fee of $10, unanimously modified, on the law, to the extent of reducing the amounts of the mandatory surcharge and crime victim assistance fee to $150 and $5, respectively, and otherwise affirmed.

Defendant’s valid waiver of his right to appeal encompassed [238]*238his present claim that his agreed-upon sentence is excessive (see People v Hidalgo, 91 NY2d 733 [1998]), and forecloses interest of justice review of that claim (People v Seaberg, 74 NY2d 1, 9-10 [1989]). In any event, were we to find that review was not precluded, we would perceive no basis for reducing the sentence.

However, since the crime was committed before the effective date of the legislation increasing the mandatory surcharge and crime victim assistance fee, defendant’s sentence was unlawful to the extent indicated (People v Reeves, 6 AD3d 231 [2004]). Since this issue involves the substantive legality of the sentence, it survives defendant’s waiver of his right to appeal. Concur— Buckley, EJ., Tom, Marlow, Gonzalez and Catterson, JJ.

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Judgment, Supreme Court, Bronx County (Steven Lloyd Barrett, J.), rendered May 12, 2003, convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him to a term of eight years, and imposing a mandatory surcharge of $200 and a crime victim assistance fee of $10, unanimously modified, on the law, to the extent of reducing the amounts of the mandatory surcharge and crime victim assistance fee to $150 and $5, respectively, and otherwise affirmed.

Defendant’s valid waiver of his right to appeal encompassed [238]*238his present claim that his agreed-upon sentence is excessive (see People v Hidalgo, 91 NY2d 733 [1998]), and forecloses interest of justice review of that claim (People v Seaberg, 74 NY2d 1, 9-10 [1989]). In any event, were we to find that review was not precluded, we would perceive no basis for reducing the sentence.

However, since the crime was committed before the effective date of the legislation increasing the mandatory surcharge and crime victim assistance fee, defendant’s sentence was unlawful to the extent indicated (People v Reeves, 6 AD3d 231 [2004]). Since this issue involves the substantive legality of the sentence, it survives defendant’s waiver of his right to appeal. Concur— Buckley, EJ., Tom, Marlow, Gonzalez and Catterson, JJ.

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Bluebook (online)

15 A.D.3d 237, 789 N.Y.S.2d 153, 2005 N.Y. App. Div. LEXIS 1487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nicholson-nyappdiv-2005.

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