190 A.D.3d 434
N.Y. App. Div.
2021

The People of the State of New York, Respondent, v Wilmari Chirinos, Defendant-Appellant.

Ind No. 639/19 Appeal No. 12775 Case No. 2019-3539

Appellate Division of the Supreme Court of New York, First Department

January 05, 2021

2021 NY Slip Op 00038

Before: Webber, J.P., Singh, Kennedy, Shulman, JJ.

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 05, 2021

Robert S. Dean, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), for respondent.

Judgment, Supreme Court, New York County (Laurie Peterson, J.), rendered February 25, 2019, as amended February 26, 2019, convicting defendant, upon her plea of guilty, of criminal possession of a controlled substance in the seventh degree, and sentencing her to a term of 30 days, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the mandatory surcharge, the DNA fee and the crime victim assistance fee, and otherwise affirmed.

Defendant was convicted before the enactment of CPL 420.35(2-a), which permits the waiver of surcharges and fees for persons who, like defendant, were less than 21 years old at the time of the subject crime. However, based on the People‘s consent as a matter of prosecutorial discretion, and pursuant to our own interest of justice powers, we waive the surcharge and fees imposed on defendant at sentencing (see People v Caviness, 176 AD3d 522 (1st Dept 2019), lv denied 34 NY3d 1076 [2019]). We find it unnecessary to reach any other issues.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 5, 2021