           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

506
KA 11-02188
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

STEPHEN M. BARBER, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (TYSON BLUE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.


     Appeal from a resentence of the Ontario County Court (Stephen D.
Aronson, A.J.), rendered August 19, 2011. Defendant was resentenced
upon his conviction of robbery in the third degree.

     It is hereby ORDERED that the resentence so appealed from is
unanimously affirmed.

     Memorandum: Defendant was convicted, upon his plea of guilty, of
robbery in the third degree (Penal Law § 160.05), and he appeals from
a resentence with respect to that conviction. We note at the outset
that defendant’s release to parole supervision does not render moot
his contention that the sentence is unduly harsh or severe because he
“remains under the control of the Parole Board until his sentence has
terminated” (People v Hannig, 68 AD3d 1779, 1780, lv denied 14 NY3d
801 [internal quotation marks omitted]; see People v Rowell, 5 AD3d
1073, 1074, lv denied 2 NY3d 806). We nevertheless reject defendant’s
contention with respect to the severity of the sentence. Because
County Court imposed the minimum sentence authorized for a class D
felony committed by a second felony offender (see Penal Law §§ 70.06
[3] [d], [4] [b]; 160.05), there is no basis for the exercise of our
authority to reduce the sentence as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [b]; People v Fiorello, 97
AD3d 763, 763; People v Agha, 239 AD2d 930, 931, lv denied 90 NY2d
854). Defendant’s further contention that the court erred in failing
to hold a hearing pursuant to CPL 420.40 to determine whether his
obligation to pay the mandatory surcharge should be deferred until his
release is rendered academic by his release to parole supervision.




Entered:   May 3, 2013                             Frances E. Cafarell
                                                   Clerk of the Court
