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People v. Brown

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 14, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
KENNETH BROWN, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered August 19, 2008, convicting defendant, upon his plea of guilty, of burglary in the second degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., McGuire, Moskowitz, Freedman, RomÁn, JJ.

5873/07

Although defendant has appealed from his judgment of conviction, the only issue he raises relates to the court's denial of his postjudgment CPL 420.40 motion that sought a financial hardship hearing to defer or vacate the mandatory surcharges and fees that had been imposed at the time of sentence. Although an appeal from a judgment of conviction brings up for review the imposition of fees and surcharges (People v Hernandez, 93 NY2d 261, 268 [1999]), defendant does not challenge the sentencing court's imposition of these assessments. The order denying the motion was not part of the judgment and is otherwise not a legislatively authorized basis for a criminal appeal (see CPL 450.10; People v Stevens, 91 NY2d 270, 277 [1998]). An order denying a defendant's post-conviction application for relief from an aspect of the judgment cannot be viewed as part of the pre-existing judgment. Since defendant has not raised any reviewable issue, we affirm (see People v Callahan, 80 NY2d 273, 285 [1992]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100114

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