Opinion
KA 04-02439.
April 28, 2006.
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.
JAMES S. HINMAN, ROCHESTER, FOR DEFENDANT-APPELLANT.
THOMAS E. MORAN, DISTRICT ATTORNEY, GENESEO (ERIC R. SCHIENER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Scudder, J.P., Kehoe, Smith, Green and Pine, JJ.
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). 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, lv denied 5 NY3d 854, quoting People v. Quinones, 95 NY2d 349, 352). The bargained-for sentence is not unduly harsh or severe.