

People v Fincher (2014 NY Slip Op 08247)





People v Fincher


2014 NY Slip Op 08247


Decided on November 25, 2014


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on November 25, 2014

Friedman, J.P., Acosta, Saxe, Gische, Kapnick, JJ.


12982 1824/08

[*1] The People of the State of New York, Respondent,
vSean Fincher, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Lauren Springer of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Julia L. Chariott of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered July 3, 2012, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a term of 6 years, to be followed by 5 years' postrelease supervision, unanimously modified, on the law, to the extent of reducing the mandatory surcharge from $300 to $250 and reducing the crime victim assistance fee from $25 to $20, and otherwise affirmed.
Although we find that the sentence is not excessive, since defendant committed the crime at issue before the effective date of the legislation increasing the mandatory surcharge and crime victim assistance fee, defendant's sentence, as the People
concede, is unlawful to the extent indicated (see, e.g. People v Cruz, 112 AD3d 478 [2013], lv denied 23 NY3d 1019 [2014]).
The Decision and Order of this Court entered herein on September 23, 2014 is hereby recalled and vacated (see M-4914 decided simultaneously herewith).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 25, 2014
CLERK


