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People v. Alvarez

Supreme Court, Appellate Division, First Department, New York.
Apr 3, 2014
116 A.D.3d 454 (N.Y. App. Div. 2014)

Opinion

2014-04-3

The PEOPLE of the State of New York, Respondent, v. Nelson ALVAREZ, Defendant–Appellant.

Steven Banks, The Legal Aid Society, New York (Kristina Schwarz of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Naomi C. Reed of counsel), for respondent.


Steven Banks, The Legal Aid Society, New York (Kristina Schwarz of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Naomi C. Reed of counsel), for respondent.

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered July 25, 2012, convicting defendant, upon his plea of guilty, of criminal mischief in the third degree and auto stripping in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 1 1/2 to 3 years, unanimously affirmed.

Since defendant was sentenced to term of incarceration of longer than 60 days ( seePenal Law § 60.35[8] ), he is required to seek relief from his mandatory surcharge payments by way of a CPL 420.10(5) motion for resentencing. Defendant's claims that he was entitled to a financial hardship hearing pursuant to CPL 420.40, and that the hearing should have been held at the time of his sentencing, are not supported by the applicable statutes. Rather, any application for relief from defendant's surcharge is to be entertained in postsentence proceedings ( see People v. Bradley, 249 A.D.2d 103, 670 N.Y.S.2d 111 [1st Dept.1998], lv. denied92 N.Y.2d 923, 680 N.Y.S.2d 464, 703 N.E.2d 276 [1998];People v. Wheeler, 244 A.D.2d 277, 664 N.Y.S.2d 778 [1st Dept.1997] ). TOM, J.P., ACOSTA, SAXE, DeGRASSE, FREEDMAN, JJ., concur.


Summaries of

People v. Alvarez

Supreme Court, Appellate Division, First Department, New York.
Apr 3, 2014
116 A.D.3d 454 (N.Y. App. Div. 2014)
Case details for

People v. Alvarez

Case Details

Full title:The PEOPLE of the State of New York, Respondent, v. Nelson ALVAREZ…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Apr 3, 2014

Citations

116 A.D.3d 454 (N.Y. App. Div. 2014)
116 A.D.3d 454
2014 N.Y. Slip Op. 2347