| People v Shaquille Mc. |
| 2014 NY Slip Op 01633 [115 AD3d 772] |
| March 12, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Shaquille Mc., Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Steven A. Bender and RichardLongworth Hecht of counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, WestchesterCounty (Neary, J.), both rendered March 6, 2013, convicting him of robbery in thesecond degree under indictment No. 12-00529, upon his plea of guilty, and adjudicatinghim a youthful offender upon his plea of guilty to assault in the second degree underindictment No. 12-01380, and imposing sentences.
Ordered that the judgment rendered under indictment No. 12-01380 is affirmed; andit is further,
Ordered that the judgment rendered under indictment No. 12-00529 is modified, onthe law, by vacating the imposition of a DNA databank fee; as so modified, the judgmentrendered under indictment No. 12-00529 is affirmed.
On August 23, 2012, the defendant entered a plea of guilty to robbery in the seconddegree in full satisfaction of indictment No. 12-00529. Subsequent to the entry of hisfirst plea, the defendant committed a new crime and, on February 6, 2013, the defendantentered a plea of guilty to assault in the second degree in full satisfaction of indictmentNo. 12-01380. At sentencing, on March 6, 2013, the defendant asked for youthfuloffender status with respect to both convictions. The court granted youthful offenderstatus with respect to indictment No. 12-00529, but declined to do so with respect toindictment No. 12-01380.
The defendant contends that, because the sentencing court granted him youthfuloffender status with respect to indictment No. 12-00529, it was required to do so withrespect to indictment No. 12-01380. The defendant was not convicted of two crimes setforth in separate counts of a single indictment, nor was he convicted of two crimes setforth in two separate indictments consolidated for trial purposes (see CPL 720.20[2]). Therefore, the sentencing court was authorized in its discretion to determine that thedefendant was a youthful offender with respect to either or both convictions (seePeople v Cecil Z., 57 NY2d 899, 902 [1982]). Accordingly, the sentencing [*2]court properly determined that it may find the defendant ayouthful offender with respect to his conviction under indictment No. 12-00529, but notwith respect to his conviction under indictment No. 12-01380.
Contrary to the defendant's contention, the mandatory surcharge could properly beimposed upon a person adjudicated a youthful offender (see Penal Law§§ 60.02 [3]; 60.35 [10]). However, as the People correctly concede, theDNA databank fee imposed on the judgment rendered under indictment No. 12-00529should be vacated, since the Penal Law does not permit the imposition of a DNAdatabank fee on a youthful offender (see Penal Law §§ 60.02 [3];60.35 [10]). Rivera, J.P., Dickerson, Cohen, Hinds-Radix and Maltese, JJ., concur.