People v Brown

People v Brown 2010 NY Slip Op 00300 [69 AD3d 466] January 14, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

The People of the State of New York, Respondent,
v
Kenneth Brown, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Gregory S. Chiarello of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered August 19, 2008, convicting defendant, upon his plea of guilty, of burglary in the second degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously affirmed.

Although defendant has appealed from his judgment of conviction, the only issue he raises relates to the court's denial of his postjudgment CPL 420.40 motion that sought a financial hardship hearing to defer or vacate the mandatory surcharges and fees that had been imposed at the time of sentence. Although an appeal from a judgment of conviction brings up for review the imposition of fees and surcharges (People v Hernandez, 93 NY2d 261, 268 [1999]), defendant does not challenge the sentencing court's imposition of these assessments. The order denying the motion was not part of the judgment and is otherwise not a legislatively authorized basis for a criminal appeal (see CPL 450.10; People v Stevens, 91 NY2d 270, 277 [1998]). An order denying a defendant's postconviction application for relief from an aspect of the judgment cannot be viewed as part of the preexisting judgment. Since defendant has not raised any reviewable issue, we affirm (see People v Callahan, 80 NY2d 273, 285 [1992]). Concur—Andrias, J.P., McGuire, Moskowitz, Freedman and RomÁn, JJ.