People v. Snell

Order unanimously affirmed. Memorandum: County Court did not err in denying defendant’s application for resentencing pursuant to CPL 420.10 to dispense with the mandatory surcharge previously imposed by the court (see, Penal Law § 60.35 [1]). Defendant failed to demonstrate that the surcharge would work an unreasonable hardship upon him or upon his immediate family (see, People v Price, 145 AD2d 445 , lv denied 73 NY2d 895 ; People v Fulton, 138 AD2d 514 ). Moreover, where, as here, defendant has been sentenced to a term of imprisonment, an application for vacatur of the mandatory surcharge is premature when it is brought prior to the time of defendant’s release from incarceration (see, People v Conigliaro, 144 AD2d 685 , 686; People v Fulton, supra; People v Lewis, 134 AD2d 286 ; People v Williams, 131 AD2d 525 , lv denied 70 NY2d 718 ; People v Peralta, 127 AD2d 803 , 804, lv denied 69 NY2d 953 ). If, at the conclusion of his imprisonment, defendant finds himself unable to pay the surcharge, he may move at that time for a waiver thereof (see, CPL 420.35, 420.10 [5]; People v Williams, supra). (Appeal from order of Onondaga County Court, Mulroy, J.—CPL 420.10 [5].) Present—Callahan, J. P., Denman, Pine, Balio and Davis, JJ.