People v Cohen

People v Cohen 2006 NY Slip Op 08755 [34 AD3d 660] November 21, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

The People of the State of New York, Respondent,
v
Steven Cohen, Appellant.

—[*1]

Appeal by the defendant from an order of the Supreme Court, Westchester County (Molea, J.), dated October 7, 2005, which, after a hearing pursuant to Correction Law article 6-C, designated him a level two sex offender and imposed a $50 sex offender registration fee upon the defendant.

Ordered that the order is modified, on the law, by deleting the provision thereof imposing a $50 sex offender registration fee upon the defendant pursuant to Penal Law § 60.35 (1) (a) (iv); as so modified, the order is affirmed, without costs or disbursements.

There was clear and convincing evidence to support the Supreme Court's determination to designate the defendant a level two sex offender, and thus it will not be disturbed on appeal (see People v Inghilleri, 21 AD3d 404 [2005]; People v Brown, 7 AD3d 595 [2004]; People v Guaman, 8 AD3d 545 [2004]).

However, the court improperly imposed the $50 sex offender registration fee upon the defendant since it is undisputed that the underlying offense was committed prior to the 2003 amendment to Penal Law § 60.35 which provided for the imposition of a sex offender registration fee (see Penal Law § 60.35 [1] [a] [iv]; People v Lloyd, 23 AD3d 296 [2005]; People v Allen, 17 AD3d 151 [2005]; see also People v Valdelamar, 122 AD2d 289 [1986]).

The defendant's remaining contentions are without merit. Santucci, J.P., Mastro, Fisher and Dillon, JJ., concur.