Recent Decisions from the Appellate Division, Second Department

December 11, 2024 Robert Abruzzese, Courthouse Editor

The home of the Appellate Division, Second Department, on Monroe Place in Brooklyn Heights. Eagle file photo by Rob Abruzzese

Probation revocation upheld in robbery case

The Appellate Division, Second Department, affirmed a Kings County Supreme Court decision revoking probation and imposing imprisonment on a defendant who admitted to violating a condition of his probation.

The case involved Wilbert O., who was originally convicted of first-degree robbery and sentenced to probation. In September 2022, Kings County Supreme Court Justice Craig S. Walker found that the defendant violated the terms of his probation and imposed a prison sentence. The defendant appealed, with assigned counsel submitting a brief under Anders v. California (386 U.S. 738), asserting that no nonfrivolous issues could be raised on appeal.

The appellate court agreed after an independent review, ruling that the brief complied with Anders and granting counsel’s motion to withdraw. The court concluded that the original ruling was justified, leaving the defendant’s sentence intact.

~ People v. O. (Anonymous), Wilbert ~

Mandatory surcharge vacated for youthful offender in grand larceny case

The Appellate Division, Second Department, modified a Kings County Supreme Court judgment to vacate a mandatory surcharge and fee imposed on a defendant who was adjudicated a youthful offender following a guilty plea to fourth-degree grand larceny.

Victor G., the defendant, was sentenced in August 2019 after pleading guilty. On appeal, his counsel argued that under Criminal Procedure Law § 420.35(2-a), mandatory surcharges and fees can be waived for individuals under 21 at the time of the offense. This provision applies retroactively to cases still pending on direct appeal when the law took effect.

The appellate court, citing precedent, exercised its interest of justice jurisdiction to grant the defendant’s request, noting that the prosecution did not oppose the relief. The court vacated the surcharge and fee while affirming the remainder of the judgment.

~ People v. G. (Anonymous), Victor ~