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The People of the State of New York, Respondent v. Stephen M. Barber

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


May 3, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
STEPHEN M. BARBER, DEFENDANT-APPELLANT.

Appeal from a resentence of the Ontario County Court (Stephen D. Aronson, A.J.), rendered August 19, 2011.

People v Barber

Released on May 3, 2013

Appellate Division, Fourth Department

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.

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.

Defendant was resentenced upon his conviction of robbery in the 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 the third degree (Penal Law § 160.05), and he appeals from a resentence with respect to that conviction. We note at the outset that defendant's release to parole supervision does not render moot his contention that the sentence is unduly harsh or severe because he "remains under the control of the Parole Board until his sentence has terminated" (People v Hannig, 68 AD3d 1779, 1780, lv denied 14 NY3d 801 [internal quotation marks omitted]; see People v Rowell, 5 AD3d 1073, 1074, lv denied 2 NY3d 806). We nevertheless reject defendant's contention with respect to the severity of the sentence. Because County Court imposed the minimum sentence authorized for a class D felony committed 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 the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]; People v Fiorello, 97 AD3d 763, 763; People v Agha, 239 AD2d 930, 931, lv denied 90 NY2d 854). Defendant's further contention that the court erred in failing to hold a hearing pursuant to CPL 420.40 to determine whether his obligation to pay the mandatory surcharge should be deferred until his release is rendered academic by his release to parole supervision.

Entered: May 3, 2013

Frances E. Cafarell Clerk of the Court

20130503

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