People v. Ruz

• Citation: 524 N.Y.S.2d 668,70 N.Y.2d 942,519 N.E.2d 614
• Parties: , 519 N.E.2d 614 The PEOPLE of the State of New York, Respondent, v. Thomas RUZ, Appellant.
• Decision Date: 14 January 1988
• Court: New York Court of Appeals

Page 668

524 N.Y.S.2d 668

70 N.Y.2d 942, 519 N.E.2d 614

The PEOPLE of the State of New York, Respondent, v. Thomas RUZ, Appellant.

Court of Appeals of New York.

Jan. 14, 1988.

Elizabeth J. Vila, Philip L. Weinstein and Helen A. Marino, New York City, for appellant.

Paul T. Gentile, Dist. Atty. (David K. Bertan and Billie Manning, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 123 A.D.2d 902, 507 N.Y.S.2d 569, should be affirmed.

Defendant acknowledges that the sentencing court had statutory power to impose the surcharge mandated by Penal Law § 60.35 ( see by contrast, People v. David, 65 N.Y.2d 809, 810, 493 N.Y.S.2d 118, 482 N.E.2d 914; People v. Fuller, 57 N.Y.2d 152, 156, 455 N.Y.S.2d 253, 441 N.E.2d 563). However, he now maintains for the first time that the surcharge was unconstitutional as applied to him, in that it violated the ex post facto prohibition contained in the Federal Constitution (U.S. Const., art. I, § 10 ). By not bringing this issue to the attention of the court at the time of sentence, defendant failed to preserve it for our review ( People v. Ingram, 67 N.Y.2d 897, 501 N.Y.S.2d 804, 492 N.E.2d 1220; People v. Lemon, 62 N.Y.2d 745, 476 N.Y.S.2d 824, 465 N.E.2d 363).

Defendant's additional constitutional challenges to the statute are similarly unpreserved ( see also, People v. Barnes, 62 N.Y.2d 702, 476 N.Y.S.2d 528, 465 N.E.2d 35).

WACHTLER, C.J., and SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK and BELLACOSA, JJ., concur.

Order affirmed in a memorandum.