People v. Cobb

153 A.D.2d 642, 544 N.Y.S.2d 730, 1989 N.Y. App. Div. LEXIS 10876

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 14, 1989
• Status: Published

Opinion

Appeal by the defendant, as limited by his brief, from a sentence of the Supreme Court, Queens County (Browne, J.), imposed April 30, 1987, upon his conviction of attempted rape in the first degree, upon his plea of guilty, the sentence being an indeterminate term of 5 to 10 years’ imprisonment and a $100 felony surcharge.

Ordered that the sentence is affirmed.

The defendant’s term of imprisonment was imposed in accordance with the plea bargain agreement and we find no basis for modifying it on appeal (see, People v Erazo, 134 AD2d 610; People v Kazepis, 101 AD2d 816).

In addition, the Supreme Court did not improvidently exercise its discretion in refusing to waive the mandatory felony surcharge at the time of sentencing (Penal Law § 60.35; CPL 420.10, 420.35; see, People v Fulton, 138 AD2d 514; People v Williams, 131 AD2d 525; People v West, 124 Misc 2d 622). The defendant’s claim that the imposition of the mandatory felony surcharge violated his constitutional rights is unpreserved for appellate review as a matter of law (CPL 470.05 [2]; People v Ruz, 70 NY2d 942), and we decline to address the issue in the exercise of our interest of justice jurisdiction. Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.