People v. Prihett

279 A.D.2d 335, 718 N.Y.S.2d 840, 2001 N.Y. App. Div. LEXIS 464

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 2001
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered May 19, 1998, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, and imposing the mandatory surcharge, unanimously affirmed.

Defendant’s claim that the court’s imposition of the mandatory surcharge (Penal Law § 60.35) without mentioning such surcharge during the plea colloquy constituted a violation of his plea bargain is unpreserved as a result of defendant’s failure to move to withdraw his plea on this ground or to object to the surcharge, and we decline to review this claim in the interest of justice. Were we to review this claim, we would find no indication in the record that defendant’s guilty plea was made in reliance on a promise that the surcharge would not be imposed. We also note that the surcharge, unlike a fine, is mandatory (CPL 420.35 [2]). We have considered and rejected defendant’s remaining claims. Concur — Nardelli, J. P., Williams, Tom, Wallach and Friedman, JJ.