| People v Barber |
| 2013 NY Slip Op 03254 [106 AD3d 1533] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vStephen M. Barber, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a resentence of the Ontario County Court (Stephen D. Aronson, A.J.),rendered August 19, 2011. Defendant was resentenced upon his conviction of robbery inthe third degree.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted, upon his plea of guilty, of robbery in thethird degree (Penal Law § 160.05), and he appeals from a resentence with respectto that conviction. We note at the outset that defendant's release to parole supervisiondoes not render moot his contention that the sentence is unduly harsh or severe becausehe "remains under the control of the Parole Board until his sentence has terminated" (People v Hannig, 68 AD3d1779, 1780 [2009], lv denied 14 NY3d 801 [2010] [internal quotation marksomitted]; see People vRowell, 5 AD3d 1073, 1074 [2004], lv denied 2 NY3d 806 [2004]). Wenevertheless reject defendant's contention with respect to the severity of the sentence.Because County Court imposed the minimum sentence authorized for a class D felonycommitted by a second felony offender (see Penal Law §§ 70.06 [3][d]; [4] [b]; 160.05), there is no basis for the exercise of our authority to reduce thesentence as a matter of discretion in the interest of justice (see CPL 470.15 [6][b]; People v Fiorello, 97AD3d 763, 763 [2012]; People v Agha, 239 AD2d 930, 931 [1997], lvdenied 90 NY2d 854 [1997]). Defendant's further contention that the court erred infailing to hold a hearing pursuant to CPL 420.40 to determine whether his obligation topay the mandatory surcharge should be deferred until his release is rendered academic byhis release to parole supervision. Present—Smith, J.P., Fahey, Carni, Sconiers andWhalen, JJ.