| People v Fauntleroy |
| 2008 NY Slip Op 09868 [57 AD3d 1167] |
| December 18, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KareemFauntleroy, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Tracy Steeves of counsel), for respondent.
Peters, J.P. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), renderedAugust 21, 2007, convicting defendant upon his plea of guilty of the crime of promoting prisoncontraband in the first degree.
Defendant, a prison inmate, was charged in a single-count indictment with promoting prisoncontraband in the first degree after a bent can lid with a razor blade taped to it was found in his pocket.Defendant thereafter pleaded guilty as charged and was sentenced as a second felony offender to theagreed-upon term of 2 to 4 years, said sentence to be served consecutively to the one defendant thenwas serving for murder in the second degree. In conjunction therewith, County Court imposed themandatory surcharge of $250, in addition to the crime victim assistance fee of $20. This appeal bydefendant ensued.
We affirm. To the extent that defendant contends that County Court erred in failing to apprisehim—prior to pleading guilty—that he would be assessed the statutory surcharge andcrime victim assistance fee (see Penal Law § 60.35 [1] [a] [i]; CPL 420.35 [2]), weneed note only that defendant failed to object to the surcharge or the fee at the time of sentencing and,hence, has not preserved this issue for our review (see People v Quishana M., 50 AD3d 1513, 1513-1514 [2008], lvdenied 10 NY3d 938 [2008]; People vSalmans, 49 AD3d 961, 962 [2008]; People v Ziolkowski, 9 AD3d 915 [2004], lv denied 3 NY3d683 [2004]). In any event, "we do [*2]not require that a defendant beadvised, prior to his or her plea, that the statutory surcharge is a part of the sentence" (People vSalmans, 49 AD3d at 962; cf. People vBonner, 21 AD3d 1184, 1185 [2005], lv denied 6 NY3d 773 [2006]).
Turning to defendant's remaining contention, inasmuch as he did not move to withdraw his plea orvacate the judgment of conviction, his challenge to the factual sufficiency of his allocution has not beenpreserved for our review (see People vCorbett, 52 AD3d 1023, 1024 [2008]; People v Douglas, 38 AD3d 1063 [2007], lv denied 9 NY3d843 [2007]). Moreover, the narrow exception to the preservation requirement is not implicated here asdefendant did not make any statements during his allocution that were inconsistent with his guilt (see People v Robles, 53 AD3d 686,687 [2008], lv denied 11 NY3d 794 [2008]). Were we to reach this issue, we would find it tobe lacking in merit. Contrary to defendant's assertion, he was not required to recite the elements ofpromoting prison contraband in the first degree (see People v Singletary, 51 AD3d 1334, 1335 [2008], lvdenied 11 NY3d 741 [2008]), as his affirmative responses to County Court's inquiries and his owndescription of his conduct were sufficient to establish the elements of that crime (see People vCorbett, 52 AD3d at 1024).
Spain, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.