Error Relating to Assessment of 10% Surcharge Must Be Preserved by Objection

Over two dissents, the Fourth Department determined the argument that a probation officer’s affidavit was not sufficient to justify a 10% surcharge must be preserved for appeal.  The Fourth Department wrote:

We disagree with our dissenting colleagues that the issue whether a surcharge of 10% is properly imposed does not require preservation. While this Court has in the past relied on the illegal sentence exception to the preservation requirement of CPL 470.05 (2) when reviewing that issue …, more recent decisions from the Court of Appeals have established that issues regarding restitution require preservation …. In addition, the Court of Appeals has held that the mandatory surcharge set forth in Penal Law § 60.35
(1) is not part of a sentence ….Those cases compel us to conclude that an issue regarding a surcharge imposed on restitution pursuant to Penal Law § 60.27 (8) must be preserved for our review and that we cannot rely on the illegal sentence exception to the preservation requirement.   People v Kirkland, KA 11-01835, 147, 4th Dept, 4-26-13