Opinion
909 KA 18-01929
10-09-2020
The PEOPLE of the State of New York, Respondent, v. SHALAND S., Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of burglary in the second degree ( Penal Law §§ 20.00, 140.25 [2] ) and was sentenced to a period of probation and ordered to pay, inter alia, restitution. Defendant now appeals from a judgment revoking the sentence of probation and imposing an indeterminate term of incarceration. At the sentencing on the violation of probation, Supreme Court converted the outstanding amount of restitution to a civil judgment.
Defendant's contention that the amount of restitution is not supported by the record is not properly before us (see generally People v. Panek , 256 A.D.2d 1238, 1239, 683 N.Y.S.2d 453 [4th Dept. 1998], lv denied 93 N.Y.2d 856, 688 N.Y.S.2d 503, 710 N.E.2d 1102 [1999] ). Where, as here, "a resentence occurs more than thirty days after the original sentence, a defendant who has not previously filed a notice of appeal from the judgment may not appeal from the judgment, but only from the resentence" ( CPL 450.30 [3] ; see generally People v. Ralston , 303 A.D.2d 1010, 1011, 756 N.Y.S.2d 808 [4th Dept. 2003] ).
Defendant also contends that the court erred in converting the outstanding restitution to a civil judgment and that we should thus vacate the civil judgment because it violates the statutory framework of CPL article 720 inasmuch as the civil judgment carries lingering financial consequences if left unpaid and has been docketed by the clerk in a way that leaves certain information regarding the money judgment accessible to public view. That contention, however, is not properly before us on this appeal (see generally People v. Abujudeh , 121 A.D.3d 1532, 1533, 993 N.Y.S.2d 417 [4th Dept. 2014], lv denied 25 N.Y.3d 1158, 15 N.Y.S.3d 291, 36 N.E.3d 94 [2015] ; People v. Baron , 133 A.D.2d 833, 834-835, 520 N.Y.S.2d 205 [2d Dept. 1987], lv denied 70 N.Y.2d 929, 524 N.Y.S.2d 680, 519 N.E.2d 626 [1987] ; see also People v. Spencer , 145 A.D.3d 1508, 1509, 45 N.Y.S.3d 723 [4th Dept. 2016], lv denied 29 N.Y.3d 1037, 62 N.Y.S.3d 306, 84 N.E.3d 978 [2017] ).
Defendant next contends that the sentence is unduly harsh and severe. As an initial matter, we agree with defendant that his release to parole supervision does not render moot his challenge to the severity of the sentence because he remains under the control of the Parole Board until his sentence has terminated (see People v. Barber , 106 A.D.3d 1533, 1533, 964 N.Y.S.2d 450 [4th Dept. 2013] ). Nevertheless, we conclude that the sentence is not unduly harsh or severe.