| People v Moore |
| 2017 NY Slip Op 05881 [152 AD3d 1088] |
[*1]
| 1 The People of the State of New York, Respondent, v DarnellMoore, Appellant. |
Martin J. McGuinness, Saratoga Springs, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Franklin County (Main Jr., J.),rendered July 14, 2015, convicting defendant upon his plea of guilty of the crime of attemptedpromoting prison contraband in the first degree.
Defendant pleaded guilty to the reduced charge of attempted promoting prison contraband inthe first degree, waived his right to appeal and was sentenced, as an admitted second felonyoffender and in accordance with the plea agreement, to a prison term of 22 to 44 months, to beserved consecutively to the sentence he was serving on a prior conviction. Defendant was alsoordered, as pertinent here, to pay a mandatory surcharge of $300 and a crime victim assistancefee of $25. He now appeals.
Defendant contends that County Court illegally directed the Department of Corrections andCommunity Supervision to collect the mandatory surcharge and crime victim assistance feeimposed pursuant to Penal Law § 60.35. Specifically, defendant argues that, insofaras County Court entered a written order at defendant's sentencing converting the mandatorysurcharge and crime victim assistance fee into a civil judgment, the subject fees wereautomatically deferred by operation of law (see CPL 420.40), thereby precluding theDepartment of Corrections and Community Supervision from subsequently deducting them fromhis inmate account. This claim, however, is precluded by defendant's unchallenged appeal waiver(see People v Morales, 119 AD3d1082, 1084 [2014], lv denied 24 NY3d 1086 [2014]; cf. People v Cota, 136 AD3d 1116,1117 [2016]). In any event, County Court lacked the discretion to issue such an order atsentencing (see People v Jones, 26NY3d 730, 732-733 [2016]).
[*2] Defendantalso challenges County Court's denial of his postjudgment motion seeking a deferral of themandatory surcharge and crime victim assistance fee pursuant to CPL 420.40. However,inasmuch as County Court's postjudgment order is not part of the judgment of conviction anddefendant failed to file a notice of appeal with regard thereto, this issue is not properly before us(see People v Flanders, 110 AD3d1112, 1113 n [2013]; People vBrown, 69 AD3d 466, 466 [2010]; compare People v Bibeau, 140 AD3d 1530, 1531 [2016], lvdenied 28 NY3d 969 [2016]).
Peters, P.J., Garry, Clark and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.