The People of the State of New York, Respondent, v. Kenneth Brown, Defendant-Appellant.

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

The People of the State of New York, Respondent, v. Kenneth Brown, Defendant-Appellant.

1986

Decided: January 14, 2010

Andrias, J.P., McGuire, Moskowitz, Freedman, Román, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Gregory S. Chiarello of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

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Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered August 19, 2008, convicting defendant, upon his plea of guilty, of burglary in the second degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.

Although defendant has appealed from his judgment of conviction, the only issue he raises relates to the court's denial of his postjudgment CPL 420.40 motion that sought a financial hardship hearing to defer or vacate the mandatory surcharges and fees that had been imposed at the time of sentence.   Although an appeal from a judgment of conviction brings up for review the imposition of fees and surcharges (People v. Hernandez, 93 N.Y.2d 261, 268 [1999] ), defendant does not challenge the sentencing court's imposition of these assessments.   The order denying the motion was not part of the judgment and is otherwise not a legislatively authorized basis for a criminal appeal (see CPL 450.10;  People v. Stevens, 91 N.Y.2d 270, 277 [1998] ).   An order denying a defendant's postconviction application for relief from an aspect of the judgment cannot be viewed as part of the preexisting judgment.   Since defendant has not raised any reviewable issue, we affirm (see People v. Callahan, 80 N.Y.2d 273, 285 [1992] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK