People v Nichols (Patrick)

[*1] People v Nichols (Patrick) 2009 NY Slip Op 52460(U) [25 Misc 3d 141(A)] Decided on December 2, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 2, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and IANNACCI, JJ
2008-1882 S CR.

The People of the State of New York, Respondent,

against

Patrick Nichols, Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (John J. Toomey, Jr., J.), rendered September 30, 2008. The judgment convicted defendant, upon his guilty plea, of petit larceny and sentenced him to 45 days' incarceration, a mandatory surcharge of $175, a DNA databank fee of $50 and a crime victim assistance fee of $25.

ORDERED that the judgment of conviction is affirmed.

Upon this appeal, defendant contends that the District Court improvidently exercised its discretion at sentencing in denying his motion for an indigency hearing with regard to deferring payment of the mandatory surcharge of $175 and a DNA databank fee of $50. It is further urged that payment of the surcharge and fee should be waived.

We are of the view that the appeal lacks merit. The District Court properly denied defendant's application for an indigency hearing to defer payment of said fee and surcharge since the court deferred payment thereof for six months. Furthermore, with respect to defendant's request that the surcharge and fee should be waived, we note that it is statutorily provided that "[u]nder no circumstances shall the mandatory surcharge . . . [or] DNA databank fee . . . be waived . . . " (CPL 420.35 [2]).

Accordingly, the judgment of conviction is affirmed.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: December 02, 2009