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The People of the State of New York, Respondent v. Dylan Barclay

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 26, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DYLAN BARCLAY, ALSO KNOWN AS DYLAN A. BARCLAY, DEFENDANT-APPELLANT.

Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered August 26, 2011.

People v Barclay

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on April 26, 2013

PRESENT: SCUDDER, P.J., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.

The judgment convicted defendant, upon his plea of guilty, of criminal sexual act in the first degree.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the DNA databank fee, sex offender registration fee, and supplemental sex offender victim fee and as modified the judgment is affirmed.

Memorandum: On appeal from a judgment convicting him as a juvenile offender upon his guilty plea of criminal sexual act in the first degree (Penal Law § 130.50 [1]), defendant contends that his bargained-for sentence of imprisonment of 2 to 6 years is unduly harsh and severe and that County Court erred in directing him to pay a DNA databank fee, a sex offender registration fee, and a supplemental sex offender victim fee. Based on our review of the record, we conclude that there is no basis for modifying the sentence of imprisonment as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). We conclude, however, that the fees imposed must be vacated because defendant was sentenced as a juvenile offender (see Penal Law §§ 60.00 [2]; 60.10; People v Stump, 100 AD3d 1457, 1458). We therefore modify the judgment accordingly. Entered: April 26, 2013 Frances E. Cafarell Clerk of the Court

20130426

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