People v Flanders

2013 NY Slip Op 06401 [110 AD3d 1112]

October 3, 2013

Appellate Division, Third Department

As corrected through Wednesday, November 27, 2013

The People of the State of New York, Respondent, vMichael Flanders, Appellant.

—[*1]Cliff Gordon, Monticello, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.

Stein, J.P. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered June 27, 2011, convicting defendant upon his plea of guilty of the crime ofaggravated driving while intoxicated.

Defendant pleaded guilty to aggravated driving while intoxicated in full satisfactionof a four-count indictment, with the understanding that he would be sentenced to a prisonterm of 11/3 to 4 years. Defendant was also ordered, as pertinent here, topay a mandatory surcharge, as well as a fine and various fees. At the sentencing hearing,defendant sought to have the payment of the mandatory surcharge deferred until after heserved his sentence, so that he could save any money accumulated in prison in order to bemore self-sufficient upon his release. County Court denied the request and thereaftersentenced defendant to the agreed-upon sentence. Defendant appeals and we affirm.

We reject defendant's contention that County Court erred in denying his request todefer the payment of the mandatory surcharge prior to imposing sentence. In our view,defendant did not demonstrate that the payment of the surcharge " 'would work anunreasonable hardship on defendant over and above the ordinary hardship suffered byother indigent inmates' " (People v Kistner, 291 AD2d 856, 856 [2002], quotingPeople v Abdus-Samad, 274 AD2d 666, 667[*2][2000], lv denied 95 NY2d 862 [2000]; seeCPL 420.40 [2]).^[FN*]As to defendant's contention that the agreed-upon sentence is harsh and excessive, wefind no extraordinary circumstances or an abuse of discretion warranting a reduction ofthe sentence, particularly in light of defendant's considerable criminal history, whichincludes two previous convictions of driving while intoxicated (see People v Williams, 101AD3d 1174, 1174 [2012]; People v Muniz, 93 AD3d 871, 876 [2012], lvdenied 19 NY3d 965 [2012]).

McCarthy, Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.

Footnote *: We note that defendantalso filed a postjudgment motion seeking to defer the payment of the mandatorysurcharge on different grounds than those argued prior to sentencing and County Courtdenied the motion. To the extent that defendant challenges the denial of thepostjudgment motion on appeal, inasmuch as County Court's order denying the motion isnot part of the judgment of conviction, and defendant has only appealed from saidjudgment, the issue is not properly before us (see People v Brown, 69 AD3d 466, 466 [2010]).