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In the Matter of Mark Wade v. Daniel F. Martuscello

State of New York Supreme Court, Appellate Division Third Judicial Department


May 26, 2011

IN THE MATTER OF MARK WADE GANTT, APPELLANT,
v.
DANIEL F. MARTUSCELLO, AS SUPERINTENDENT OF COXSACKIE CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Lalor, J.), entered September 9, 2010 in Greene County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

The opinion of the court was delivered by: Rose, J.

MEMORANDUM AND ORDER

Calendar Date: April 18, 2011

Before: Mercure, J.P., Rose, Lahtinen, Kavanagh and McCarthy, JJ.

In July 2008, petitioner pleaded guilty to two counts of burglary in the second degree in full satisfaction of a 21-count indictment. He was sentenced to concurrent 12-year prison terms, to be followed by five years of postrelease supervision, restitution and applicable surcharges. On appeal, we found that restitution was improperly imposed and remitted the matter for further proceedings (People v Gantt, 63 AD3d 1379 [2009]). On remittal, County Court imposed the originally agreed-upon sentence without restitution but with the original surcharges.

On appeal, we affirmed (People v Gantt, 77 AD3d 988 [2010]). Petitioner thereafter commenced this CPLR article 78 proceeding by order to show cause, challenging the imposition of the surcharges and respondents' collection of them from his inmate account. Supreme Court denied petitioner's application for an order to show cause and dismissed the petition, finding that it failed to state a cause of action.

We affirm. Pursuant to the Penal Law as it was in effect at the time of petitioner's conviction in July 2008, petitioner was subject to a mandatory surcharge of $250, a crime victim assistance fee of $20 and a DNA registration fee of $50 (see Penal Law former § 60.35 [1]; L 2004, c 56, pt F § 2 [eff. Feb. 16, 2005]) and these surcharges are properly collected through petitioner's inmate account (see Penal Law § 60.35 [5]). Petitioner's argument that the imposition of a DNA registration fee was not proper because he has been charged such a fee in connection with another, unrelated conviction should have been raised in his prior appeal (see generally People v Ryder, 239 AD2d 364, 365 [1997], lv denied 90 NY2d 910 [1997]; People ex rel. Hampton v Scully, 166 AD2d 734, 734 [1990], lv denied 77 NY2d 803 [1991]; People v Landin, 31 AD2d 944, 944 [1969]). Were we to consider this contention in any event, we would find it unpersuasive (see Penal Law § 60.35; see also People v Wrotten, 48 AD3d 296, 296 [2008], lv denied 10 NY3d 872 [2008]; People v Higgins, 137 AD2d 620, 621 [1988], lv denied 71 NY2d 897 [1988]).

Mercure, J.P., Lahtinen, Kavanagh and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110526

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