People v. Alvarez

116 A.D.3d 454, 982 N.Y.S.2d 768

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 2014
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered July 25, 2012, convicting defendant, upon his plea of guilty, of criminal mischief in the third degree and auto stripping in the third degree, and sentencing him, as a second felony offender, to an aggregate term of IV2 to 3 years, unanimously affirmed.

Since defendant was sentenced to a term of incarceration of longer than 60 days (see Penal Law § 60.35 [8]), he is required to seek relief from his mandatory surcharge payments by way of a CPL 420.10 (5) motion for resentencing. Defendant’s claims that he was entitled to a financial hardship hearing pursuant to CPL 420.40, and that the hearing should have been held at the time of his sentencing, are not supported by the applicable statutes. Rather, any application for relief from defendant’s surcharge is to be entertained in postsentence proceedings (see People v Bradley, 249 AD2d 103 [1st Dept 1998], lv denied 92 NY2d 923 [1998]; People v Wheeler, 244 AD2d 277 [1st Dept 1997]). Concur — Tom, J.E, Acosta, Saxe, DeGrasse and Freedman, JJ.