| People v Stump |
| 2012 NY Slip Op 07537 [100 AD3d 1457] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jacob Stump,Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July28, 2011. The judgment convicted defendant, upon his plea of guilty, of rape in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the DNA databank fee and sex offender registration fee and as modified thejudgment is affirmed.
Memorandum: On appeal from a judgment convicting him as a juvenile offender upon hisguilty plea of rape in the first degree (Penal Law § 130.35 [1]), defendant contends that hisbargained-for sentence of imprisonment of 3 to 9 years is unduly harsh and severe and thatCounty Court erred in directing him to pay a DNA databank fee and a sex offender registrationfee. Based on our review of the record, we conclude that there is no basis upon which to modifythe sentence of imprisonment in the interest of justice (see CPL 470.15 [2] [c]), but weagree with defendant that the sentence should be vacated insofar as it directed him to pay thosefees.
"Penal Law § 60.00 (2) provides that the 'sole provision' of article 60 'that shall applyin the case of an offense committed by a juvenile offender is section 60.10 . . . andno other provisions of this article shall be deemed or construed to apply in any such case.' Wherestatutory language is clear and unambiguous, a court is constrained to give effect to the plainmeaning of the words used" (People v McFadden, 205 AD2d 560, 560 [1994]; seePeople v Hurd, 220 AD2d 454, 454 [1995]; William C. Donnino, Practice Commentary,McKinney's Cons Laws of NY, Book 39, Penal Law § 60.10). Section 60.10 (1) providesthat a juvenile offender who is convicted of a crime may be sentenced to a term of imprisonmentin accordance with section 70.05 or may be sentenced upon a youthful offender finding inaccordance with section 60.02. Here, it is undisputed that there was no youthful offender finding.Section 60.10 (2) provides that subdivision 60.10 (1) applies when sentencing a juvenile offender"notwithstanding the provisions of any other law that deals with the authorized sentence forpersons who are not juvenile offenders" other than when considering the use of a juvenileoffender conviction as a predicate offense. Although neither Hurd nor McFaddeninvolved DNA databank or sex offender registration fees, the reasoning of those cases appliesherein. Section 60.10 (1) does not [*2]permit the imposition ofany fines or fees on a juvenile offender and, because section 60.10 is the sole provision thatapplies to juvenile offenders, the court erred in imposing the DNA databank and sex offenderregistration fees. We therefore modify the judgment accordingly. Present—Scudder, P.J.,Smith, Centra, Lindley and Whalen, JJ.