Defendant further contends that he was denied effective assistance of counsel on the ground that his attorney failed to effectuate his intent to testify before the grand jury. That contention "does not survive his guilty plea... because there was no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance" (People v Dean, 48 A.D.3d 1244, 1245 [4th Dept 2008], lv denied 10 N.Y.3d 839 [2008] [internal quotation marks omitted]; see People v Halsey, 108 A.D.3d 1123, 1123-1124 [4th Dept 2013]; People v Ortiz, 104 A.D.3d 1202, 1202-1203 [4th Dept 2013]).

[2] Defendant further contends that he was denied effective assistance of counsel on the ground that his attorney failed to effectuate his intent to testify before the grand jury. That contention "does not survive his guilty plea … because there was no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney[’s] allegedly poor performance" (People v. Dean, 48 A.D.3d 1244, 1245, 852 N.Y.S.2d 545 [4th Dept. 2008], lvdenied 10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85 [2008] [internal quotation marks omitted]; see People v. Halsey, 108 A.D.3d 1123, 1123-1124, 968 N.Y.S.2d 309 [4th Dept. 2013]; People v. Ortiz, 104 A.D.3d 1202, 1202-1203, 960 N.Y.S.2d 587 [4th Dept. 2013]). Finally, the sentence is not unduly harsh or severe.

Defendant has completed both her term of imprisonment and her period of postrelease supervision but argues that the $5,000 fine imposed as a component of her sentence is harsh and excessive. Preliminarily, defendant's challenge to the severity of the fine survives even a valid appeal waiver because the amount of the fine "was not included in the terms of the plea bargain" (People v Ortiz, 104 A.D.3d 1202, 1203 [2013]; see People v Hernandez, 140 A.D.3d 1521, 1523 [2016], lv denied 28 N.Y.3d 971 [2016]). That said, defendant was advised that a fine was part of her plea agreement, County Court informed defendant that the maximum fine she could have faced absent such agreement was $5,000 and a review of the sentencing minutes reveals that the amount of the fine to be imposed was left to County Court's discretion (compare People v Sanchez, 164 A.D.3d 1545, 1547 [2018], lv denied 32 N.Y.3d 1115 [2018]; People v Lohnes, 112 A.D.3d 1148, 1149 [2013]).

Defendant has completed both her term of imprisonment and her period of postrelease supervision but argues that the $5,000 fine imposed as a component of her sentence is harsh and excessive. Preliminarily, defendant's challenge to the severity of the fine survives even a valid appeal waiver because the amount of the fine "was not included in the terms of the plea bargain" ( People v. Ortiz, 104 A.D.3d 1202, 1203, 960 N.Y.S.2d 587 [2013] ; seePeople v. Hernandez, 140 A.D.3d 1521, 1523, 34 N.Y.S.3d 698 [2016], lv denied 28 N.Y.3d 971, 43 N.Y.S.3d 258, 66 N.E.3d 4 [2016] ). That said, defendant was advised that a fine was part of her plea agreement, County Court informed defendant that the maximum fine she could have faced absent such agreement was $5,000 and a review of the sentencing minutes reveals that the amount of the fine to be imposed was left to County Court's discretion (comparePeople v. Sanchez, 164 A.D.3d 1545, 1547, 84 N.Y.S.3d 589 [2018], lv denied 32 N.Y.3d 1115, 91 N.Y.S.3d 366, 115 N.E.3d 638 [2018] ; People v. Lohnes, 112 A.D.3d 1148, 1149, 976 N.Y.S.2d 719 [2013] ).

Even assuming, arguendo, that defendant's entry of his plea while represented by his second attorney did not forfeit his right to contend that he was denied effective assistance by his first attorney's failure to advise him of his right to testify before the grand jury (cf. People v Ortiz, 104 AD3d 1202, 1203), we conclude that his contention is based on matters outside the record and must be raised by way of a motion pursuant to CPL article 440 (see People v Gaston, 100 AD3d 1463, 1466; People v Frazier, 63 AD3d 1633, 1634, lv denied 12 NY3d 925). The sentence is not unduly harsh or severe. Entered: February 10, 2017

Even assuming, arguendo, that defendant's entry of his plea while represented by his second attorney did not forfeit his right to contend that he was denied effective assistance by his first attorney's failure to advise him of his right to testify before the grand jury (cf. People v. Ortiz, 104 A.D.3d 1202, 1203, 960 N.Y.S.2d 587 ), we conclude that his contention is based on matters outside the record and must be raised by way of a motion pursuant to CPL article 440 (see People v. Gaston, 100 A.D.3d 1463, 1466, 953 N.Y.S.2d 780 ; People v. Frazier, 63 A.D.3d 1633, 1634, 880 N.Y.S.2d 809, lv. denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 ). The sentence is not unduly harsh or severe.

vertheless reject his contention in his pro se supplemental brief that "the court could not use that conviction as the basis for that adjudication" (People v. Bailey, 90 A.D.3d 1664, 1666, 935 N.Y.S.2d 822, lv. denied 19 N.Y.3d 861, 947 N.Y.S.2d 410, 970 N.E.2d 433 ). With respect to defendant's contention in appeal No. 3, which is raised in his pro se supplemental brief, that the court erred in imposing a fine without holding a hearing or otherwise determining that the amount of the fine corresponded to defendant's gain from the offense, " ‘[a] fine for a felony, when initially authorized by article 60, may be imposed, irrespective of whether the defendant gained money or property [L. 1977, c. 352; (Penal Law) § 80.00 ]’ " (People v. McFarlane, 18 A.D.3d 577, 578, 794 N.Y.S.2d 660, lv. denied 5 N.Y.3d 791, 801 N.Y.S.2d 812, 835 N.E.2d 672, quoting William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art. 80, at 5; see People v. Ortiz [Appeal No. 1], 104 A.D.3d 1202, 1203, 960 N.Y.S.2d 587 ). The sentence is not unduly harsh or severe.

n upon which his adjudication as a second felony offender is based remain[ed] pending [at the time of sentencing]," we nevertheless reject his contention in his pro se supplemental brief that "the court could not use that conviction as the basis for that adjudication" (People v Bailey, 90 AD3d 1664, 1666, lv denied 19 NY3d 861). With respect to defendant's contention in appeal No. 3, which is raised in his pro se supplemental brief, that the court erred in imposing a fine without holding a hearing or otherwise determining that the amount of the fine corresponded to defendant's gain from the offense, " [a] fine for a felony, when initially authorized by article 60, may be imposed, irrespective of whether the defendant gained money or property [L. 1977, c. 352; (Penal Law) § 80.00]' " (People v McFarlane, 18 AD3d 577, 578, lv denied 5 NY3d 791, quoting William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 80, at 5; see People v Ortiz [appeal No. 1], 104 AD3d 1202, 1203). The sentence is not unduly harsh or severe.

Given defendant's valid appeal waiver, he is foreclosed from challenging both County Court's decision to deny him youthful offender status and the sentence as harsh and excessive (see People v Pacherille, 25 NY3d 1021, 1023-1024 [2015]; People v Lopez, 6 NY3d at 256; People v Bailey, 137 AD3d 1620, 1621 [2016]; People v Roberts, 134 AD3d 1352, 1352 [2015]). While defendant's challenge to the $4,000 in fines imposed survives the appeal waiver "because the amount of the fine[s] is not included in the terms of the plea bargain set forth in the record" (People v Etkin, 284 AD2d 579, 580-581 [2001], lv denied 96 NY2d 862 [2001]; see People v Ortiz, 104 AD3d 1202, 1203 [2013]), defendant failed to object to the imposition of a fine at sentencing or otherwise preserve his contention for our review (see People v Wingo, 103 AD3d 1036, 1037 [2013], lv denied 21 NY3d 1021 [2013]; People v Trimm, 295 AD2d 640, 642 [2002], lv denied 98 NY2d 732 [2002]; People v Carrillo, 257 AD2d 780, 783 [1999], lv denied 93 NY2d 967 [1999]). Finally, the People concede, and we agree, that because only the Board of Parole is authorized to impose the conditions of a term of a postrelease supervision (see Penal Law § 70.45 [3]; Executive Law §§ 259-c [2]; 259-i [3], [4]; People v Monk, 21 NY3d 27, 32 [2013]; People v Curry, 123 AD3d 1381, 1383-1384 [2014], lv denied 25 NY3d 950 [2015]), County Court erred to the extent that it imposed certain conditions of defendant's postrelease supervision at sentencing, and those conditions must be stricken (see People v Curry, 123 AD3d at 1383-1384).

d is more properly the subject of a CPL article 440 motion (see People v. Guyette, 121 A.D.3d at 1432, 995 N.Y.S.2d 395 ; see also People v. Griffith, 136 A.D.3d at 1115, 25 N.Y.S.3d 400).Given defendant's valid appeal waiver, he is foreclosed from challenging both County Court's decision to deny him youthful offender status and the sentence as harsh and excessive (see People v. Pacherille, 25 N.Y.3d 1021, 1023–1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] ; People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Bailey, 137 A.D.3d 1620, 1621, 26 N.Y.S.3d 917 [2016] ; People v. Roberts, 134 A.D.3d 1352, 1352, 21 N.Y.S.3d 649 [2015] ). While defendant's challenge to the $4,000 in fines imposed survives the appeal waiver “because the amount of the fine[s] is not included in the terms of the plea bargain set forth in the record” (People v. Etkin, 284 A.D.2d 579, 580–581, 728 N.Y.S.2d 205 [2001], lv. denied 96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119 [2001] ; see People v. Ortiz, 104 A.D.3d 1202, 1203, 960 N.Y.S.2d 587 [2013] ), defendant failed to object to the imposition of a fine at sentencing or otherwise preserve his contention for our review (see People v. Wingo, 103 A.D.3d 1036, 1037, 962 N.Y.S.2d 422 [2013], lv. denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ; 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] ; People v. Carrillo, 257 A.D.2d 780, 783, 686 N.Y.S.2d 114 [1999], lv. denied 93 N.Y.2d 967, 695 N.Y.S.2d 53, 716 N.E.2d 1098 [1999] ).Finally, the People concede, and we agree, that because only the Board of Parole is authorized to impose the conditions of a term of a postrelease supervision (see Penal Law § 70.45[3] ; Executive Law §§ 259–c [2 ]; 259–i[3], [4]; People v. Monk, 21 N.Y.3d 27, 32, 966 N.Y.S.2d 739, 989 N.E.2d 1 [2013] ; People v. Curry, 123 A.D.3d 1381, 1383–1384, 999 N.Y.S.2d 591 [2014], lv. denied 25 N.Y.3d 950, 7 N.Y.S.3d 279, 30 N.E.3d 170 [2015] ), County Court erred to th