People v Carl L. Stewart

People v Stewart 2006 NY Slip Op 03312 [28 AD3d 1188] April 28, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

The People of the State of New York, Respondent, v Carl L. Stewart, Appellant.

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Appeal from a judgment of the Livingston County Court (Ronald A. Cicoria, J.), rendered October 12, 2004. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]). Defendant contends that County Court erred in imposing a surcharge and crime victim assistance fee because the court also ordered him to pay restitution. " '[T]he plain language of [Penal Law § 60.35 (6)] permits the sentencing court to order both restitution and the mandatory surcharge/crime victim assistance fee' where, as here, defendant has not yet made restitution" (People v Michalski, 15 AD3d 918, 919 [2005], lv denied 5 NY3d 854 [2005], quoting People v Quinones, 95 NY2d 349, 352 [2000]). The bargained-for sentence is not unduly harsh or severe. Present—Scudder, J.P., Kehoe, Smith, Green and Pine, JJ.