| People v Pelsey |
| 2009 NY Slip Op 02633 [60 AD3d 1088] |
| March 31, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Timothy Pelsey, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and William Branigan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.),rendered November 10, 2005, convicting him of manslaughter in the first degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating so much of the sentence asimposed a DNA data bank fee and separately imposed a mandatory surcharge and crime victims'assistance fee in the total sum of $270; as so modified, the judgment is affirmed, and the matteris remitted to the Supreme Court, Queens County, for resentencing on the matter of theimposition of the appropriate mandatory surcharge and crime victims' assistance fee.
Contrary to the defendant's contention, the Supreme Court properly submitted to the jury thelesser-included offense of manslaughter in the first degree (Penal Law § 125.20). There isa reasonable view of the evidence that the defendant intended to cause only serious physicalinjury to the victim and not death (see CPL 300.50 [1]; People v Davis, 181AD2d 411 [1992]; People v Gonzalez, 151 AD2d 601, 602 [1989]).
The Supreme Court properly declined to instruct the jury that the passenger in the car thatthe defendant was driving on the night the crimes were committed could be an accomplice infact, whose trial testimony requires corroboration (see CPL 60.22). The defendantoffered only unsupported speculation [*2]that the witness was aparticipant in the crimes (see People v Jones, 73 NY2d 902, 903 [1989]). The merepresence of a witness at the scene of a crime does not support such an instruction (see Peoplev Tucker, 72 NY2d 849, 850 [1988]; People v Nieves, 294 AD2d 152 [2002];People v Morillo, 156 AD2d 479 [1989]).
Contrary to the defendant's contention, this Court need not excise from his sentence theperiod of postrelease supervision apparently added by the New York State Department ofCorrectional Services. Neither the sentencing minutes nor the order of commitment mentionedthe imposition of any period of postrelease supervision. Therefore, the sentence imposed by thecourt "never included, and [does] not now include, any period of postrelease supervision"(People v Guare, 45 AD3d 697, 697 [2007]; see Hill v United States ex rel.Wampler, 298 US 460 [1936]; People v Thompson, 39 AD3d 572, 573 [2007];People v Benson, 38 AD3d 563, 564 [2007]). "Thus, rather than having been imposed ina procedurally defective manner (see People v Sparber, 10 NY3d 457 [2008]), here, theperiod of postrelease supervision was never imposed at all" (People v Faulkner, 55AD3d 924, 926 [2008]; see generally Matter of Garner v New York State Dept. ofCorrectional Servs., 10 NY3d 358, 362 [2008]).
As the People correctly concede, since the crimes were committed before the effective dateof the legislation providing for the imposition of a DNA databank fee (see Penal Law§ 60.35 [1] [a] [v]), that fee should not have been imposed (see People v Hill, 25AD3d 724 [2006]). The People also correctly concede that the Supreme Court erred in imposinga mandatory surcharge and crime victims' assistance fee in the total sum of $270, since the PenalLaw required a mandatory surcharge and crime victims' assistance fee in the total sum of only$210 at the time the criminal acts underlying the instant convictions were committed (seePenal Law § 60.35; People v Cruz, 25 AD3d 565 [2006]). Skelos, J.P., Angiolillo,Balkin and Belen, JJ., concur.