Opinion
109692
04-25-2019
The PEOPLE of the State of New York, Respondent, v. Kashawn ARCHER, Appellant.
Adam H. Van Buskirk, Auburn, for appellant. Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.
Adam H. Van Buskirk, Auburn, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Devine and Pritzker, JJ.
MEMORANDUM AND ORDER
Devine, J. Defendant pleaded guilty to the reduced charge of attempted promoting prison contraband in the first degree and waived his right to appeal. County Court denied defendant's request that collection of the surcharge and fees be deferred, concluding that it lacked authority to do so, but informed defendant that such request could be considered upon submission of a written motion following sentencing. Consistent with the plea agreement, the court then sentenced defendant as a second felony offender to a prison term of 1 ½ to 3 years and imposed the mandatory surcharge and fees. Defendant appeals.
Defendant's contention that County Court erred in determining that it did not have the authority to defer or waive the surcharge and fees is without merit. The court was obligated, pursuant to Penal Law § 60.35(1)(a), to levy the mandatory surcharge and fees at the time the sentence was imposed, and it lacked the authority at sentencing to consider defendant's request for deferment (see People v. Jones , 26 N.Y.3d 730, 732–733, 27 N.Y.S.3d 431, 47 N.E.3d 710 [2016] ). Furthermore, contrary to defendant's contention, the valid waiver of the right to appeal precludes his challenge to the mandatory surcharge and fees imposed by the court (see People v. Morales , 119 A.D.3d 1082, 1084, 990 N.Y.S.2d 144 [2014], lv denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014] ; People v. Frazier , 57 A.D.3d 1460, 1461, 869 N.Y.S.2d 826 [2008], lv denied 12 N.Y.3d 783, 879 N.Y.S.2d 60, 906 N.E.2d 1094 [2009] ).
Defendant also contends that he received ineffective assistance of counsel because the record does not reflect that any motion requesting deferral of the surcharge and fees was filed by defense counsel following sentencing. The alleged failure of defense counsel to pursue a postjudgment motion does not impact the voluntariness of the plea and, therefore, such challenge is precluded by the waiver of the right to appeal (see People v. McDuffie , 43 A.D.3d 559, 560, 840 N.Y.S.2d 253 [2007], lv denied 9 N.Y.3d 992, 848 N.Y.S.2d 609, 878 N.E.2d 1025 [2007] ; People v. Trimm , 295 A.D.2d 640, 642, 744 N.Y.S.2d 52 [2002], lv denied 98 N.Y.2d 732, 749 N.Y.S.2d 482, 779 N.E.2d 193 [2002] ). In any event, the issue is not properly before us on this appeal from the judgment of conviction (see People v. Moore , 152 A.D.3d 1088, 1088, 56 N.Y.S.3d 474 [2017] ; People v. Flanders , 110 A.D.3d 1112, 1113, 972 N.Y.S.2d 355 n [2013] ).
Egan Jr., J.P., Lynch, Clark and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.