| People v Caggiano |
| 2007 NY Slip Op 10275 [46 AD3d 1405] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RobertCaggiano, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedSeptember 27, 2006. The judgment convicted defendant, upon his plea of guilty, of attemptedcriminal sexual act in the first degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by vacating the DNA databank fee, sex offender registrationfee and supplemental sex offender victim fee and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty ofattempted criminal sexual act in the first degree (Penal Law §§ 110.00, 130.50 [4]).We agree with defendant that his waiver of the right to appeal is invalid and does not forecloseour review of his challenge to the severity of the sentence. Based upon our review of the pleacolloquy, we conclude that "defendant may have erroneously believed that the right to appeal isautomatically extinguished upon entry of a guilty plea" (People v Moyett, 7 NY3d 892, 893 [2006], citing People vBillingslea, 6 NY3d 248, 257 [2006]). We conclude, however, that the sentence ofincarceration is not unduly harsh or severe.
As the People correctly concede, the instant offense was committed before the effective datesof the amendments to Penal Law § 60.35 providing for the DNA databank fee, sexoffender registration fee and supplemental sex offender victim fee, and thus those fees should nothave been imposed (see People vFomby, 42 AD3d 894, 896 [2007]; People v Febres, 11 AD3d 319 [2004]). We therefore modify thejudgment accordingly.
In addition, we note that the certificate of conviction contains a clerical error inasmuch as itincorrectly reflects the amounts of the mandatory surcharge and crime victim assistance fee. Asset forth in the sentencing minutes, County Court directed defendant to pay a mandatorysurcharge of $200 and a crime victim assistance fee of $10, while the certificate of convictionprovides for the imposition of a mandatory surcharge of $250 and a crime victim assistance feeof $20. Those increases reflect an amendment to Penal Law § 60.35 (1) (a) that becameeffective after the instant offense was committed and the court therefore properly did not applythem to this conviction (cf. People vSullivan, 6 AD3d 1175 [2004], lv denied 3 NY3d 648 [2004]; People vHager, 5 [*2]AD3d 981 [2004]). The certificate of convictionmust therefore be amended to reflect the proper amounts of the mandatory surcharge and crimevictim assistance fee imposed at sentencing (see generally People v Saxton, 32 AD3d 1286 [2006]).Present—Hurlbutt, J.P., Smith, Centra, Green and Pine, JJ.