| People v Parker |
| 2016 NY Slip Op 01989 [137 AD3d 1625] |
| March 18, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTyshawn S. Parker, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), renderedJanuary 3, 2014. The judgment convicted defendant, upon his plea of guilty, ofkidnapping in the second degree, attempted assault in the first degree, assault in thesecond degree (two counts), criminal possession of a weapon in the third degree (twocounts) and strangulation in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reducing the surcharge to5% of the amount of restitution and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of kidnapping in the second degree (Penal Law § 135.20), attemptedassault in the first degree (§§ 110.00, 120.10 [1]), and two counts eachof assault in the second degree (§ 120.05 [2]), strangulation in the seconddegree (§ 121.12), and criminal possession of a weapon in the third degree(§ 265.02 [1]). Defendant was sentenced to an aggregate determinate termof incarceration of 15 years, with five years of postrelease supervision. Defendantcontends that his sentence is unduly harsh and severe. Contrary to the People'scontention, in exercising our power to review the severity of a sentence as a matter ofdiscretion in the interest of justice (see CPL 470.15 [3] [c]; [6] [b]), we need notdetermine "that there is some demonstrated need to impose a different view of discretionthan that of the sentencing Judge." Rather, it is well settled that we have "broad, plenarypower to modify a sentence that is unduly harsh or severe under the circumstances, eventhough the sentence may be within the permissible statutory range" (People vDelgado, 80 NY2d 780, 783 [1992]; see People v Lopez, 6 NY3d 248, 260 n 5 [2006];People v Suitte, 90 AD2d 80, 85-86 [1982]). Nevertheless, under thecircumstances presented, we conclude that defendant's sentence is not unduly harsh orsevere.
Defendant further contends that the $300 mandatory surcharge and $25 crime victimassistance fee imposed pursuant to Penal Law § 60.35 (1) are excessivewhen considered in conjunction with the $2,093 ordered in restitution. Because themandatory surcharge and crime victim assistance fee are not part of defendant's sentence(see People v Guerrero, 12NY3d 45, 48 [2009]) and, inasmuch as defendant did not object to the imposition ofthe surcharge and fee at sentencing, defendant's contention is not preserved for ourreview (see CPL 470.05 [2]). In any event, defendant's contention is withoutmerit because he has "offered 'no credible and verifiable information establishing that thesurcharge [and fee] would work an unreasonable hardship on [him] over and above theordinary hardship suffered by other indigent inmates' " (People v Kistner,291 AD2d 856, 856 [2002]; see People v Abdus-Samad, 274 AD2d 666, 667[2000], lv denied 95 NY2d 862 [2000]).
Finally, defendant contends that County Court erred in assessing a 10% collectionsurcharge pursuant to Penal Law § 60.27 (8), because the People failed tofile an affidavit from [*2]an official enumerated in CPL420.10 (8). Although defendant's contention is unpreserved for our review (see People v Kirkland, 105AD3d 1337, 1338 [2013], lv denied 21 NY3d 1043 [2013]), we note that thePeople concede that they did not submit the requisite affidavit. We exercise our power toreview the issue as a matter of discretion in the interest of justice, and we modify thejudgment by reducing the surcharge from 10% of the value of the ordered restitution to5% (see People vUnderwood, 128 AD3d 1385, 1386-1387 [2015], lv denied 25 NY3d1209 [2015]). Present—Smith, J.P., Peradotto, Carni, Lindley and Whalen, JJ.