People v. Rada

Apr 19, 1990
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—Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered January 25, 1989, convicting defendant, upon a plea of guilty, of criminal *553possession of a controlled substance in the second ‍​‌​​‌​‌‌​‌​​‌​​​​​​‌​‌‌​‌‌‌​‌‌​‌‌​​‌​​​​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​​‌​‌​‌​‌‌​‌​​‌​‌​‌​‌‌​‌​‌​​​‌​​​​​‌​‌‍degree (Penal Law § 220.18), sentencing him to an indeterminate prison term of from five years to life, and imposing a mandatory surcharge of $100, is unanimously affirmed.

Defendant was arrested as a result of his participation in a major drug distribution ring, from which he, acting in concert with others, played an active role in supplying over 11 Vi pounds of ‍​‌​​‌​‌‌​‌​​‌​​​​​​‌​‌‌​‌‌‌​‌‌​‌‌​​‌​​​​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​​‌​‌​‌​‌‌​‌​​‌​‌​‌​‌‌​‌​‌​​​‌​​​​​‌​‌‍cocaine to an undercover police officer. Charged with conspiracy in the second degree, criminal sale of a controlled substance in the first degree (two counts), and criminal possession of a controlled substance in the first degree (three counts), defendant pleaded guilty and was sentenced as noted above.

On appeal, defendant argues that his sentence was excessive, and that ‍​‌​​‌​‌‌​‌​​‌​​​​​​‌​‌‌​‌‌‌​‌‌​‌‌​​‌​​​​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​​‌​‌​‌​‌‌​‌​​‌​‌​‌​‌‌​‌​‌​​​‌​​​​​‌​‌‍the imposition of a surcharge pursuant to Penal Law § 60.35 was improper. These claims are without merit.

Once a court accepts a plea with no reason to believe that it is unfair or inappropriate, the bargain becomes final. (People v Francis, 38 NY2d 150, 156.) Moreover, defendant was sentenced in accordance with his plea bargain and within statutory guidelines and, “[h]aving received ‍​‌​​‌​‌‌​‌​​‌​​​​​​‌​‌‌​‌‌‌​‌‌​‌‌​​‌​​​​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​​‌​‌​‌​‌‌​‌​​‌​‌​‌​‌‌​‌​‌​​​‌​​​​​‌​‌‍the benefit of his bargain, defendant should be bound by its terms.” (People v Felman, 141 AD2d 889, 890, lv denied 72 NY2d 918; People v Rush, 155 AD2d 241.)

With respect to the $100 mandatory surcharge, we first note that the proper procedure for raising a claim of undue hardship is to move for resentencing pursuant to CPL 420.10 (5). In any event, defendant has ‍​‌​​‌​‌‌​‌​​‌​​​​​​‌​‌‌​‌‌‌​‌‌​‌‌​​‌​​​​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​​‌​‌​‌​‌‌​‌​​‌​‌​‌​‌‌​‌​‌​​​‌​​​​​‌​‌‍failed to establish that the surcharge worked an unreasonable hardship on him or his immediate family. (See, CPL 420.35; People v Lewis, 134 AD2d 286.) Concur—Kupferman, J. P., Ross, Carro and Kassal, JJ.