People v Torres (Samuel)

[*1] People v Torres (Samuel) 2021 NY Slip Op 51073(U) Decided on November 12, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : DAVID ELLIOT, J.P., MICHELLE WESTON, DONNA-MARIE E. GOLIA, JJ
2019-1772 Q CR

The People of the State of New York, Respondent,

against

Samuel Torres, Appellant.

New York City Legal Aid Society (Whitney Elliott of counsel), for appellant. Queens County District Attorney (Johnnette Traill and Hannah Scotti of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Suzanne J. Melendez, J.), rendered October 28, 2019. The judgment convicted defendant, upon his plea of guilty, of resisting arrest and unauthorized use of a vehicle in the third degree, and imposed sentence. The appeal from the judgment of conviction brings up for review the imposition of a mandatory surcharge and DNA databank fee.

ORDERED that the judgment of conviction is modified, as a matter of discretion in the interest of justice, by vacating the imposition of the mandatory surcharge and DNA databank fee; as so modified, the judgment of conviction is affirmed.

On appeal, defendant asks this court to waive the mandatory surcharge and DNA databank fee imposed upon him at sentencing.

Defendant was convicted before the enactment of CPL 420.35 (2-a), which permits, under certain circumstances, including the interests of justice (see CPL 420.35 [2-a] [c]), the waiver of mandatory surcharges and various fees, including the DNA databank fee, where the person who committed the offense was less than 21 years old at the time of the offense, as was defendant [*2]herein. The People consent to defendant's request for a waiver.

In the interest of justice, we waive the mandatory surcharge and DNA databank fee imposed upon defendant at sentencing (see CPL 420.35 [2-a] [c]; People v Henry P.-M., 196 AD3d 650 [2021]; People v Dyshawn B., 196 AD3d 638 [2021]; People v Johnson, 193 AD3d 1076, 1077 [2021]).

Accordingly, the judgment of conviction is modified by vacating the imposition of the mandatory surcharge and DNA databank fee.

WESTON and GOLIA, JJ., concur.

ELLIOT, J.P., taking no part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 12, 2021