People v. Hernandez

75 Misc.3d 22

167 N.Y.S.3d 298

The PEOPLE of the State of New York, Respondent,

v.Emerson HERNANDEZ, Appellant.

2019-1258 S CR

Supreme Court, Appellate Term, New York, Second Dept., 9 & 10 Jud. Dist.

Decided on April 7, 2022

Feldman & Feldman (Steven A. Feldman of counsel), for appellant.

Suffolk County District Attorney (Lauren Tan, Marion Tang and Glenn Green of counsel), for respondent.

PRESENT: TIMOTHY S. DRISCOLL, J.P., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ.

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 DNA databank fee; as so modified, the judgment of conviction is affirmed.

Defendant pleaded guilty to criminal trespass in the third degree ( Penal Law § 140.10 [a] ) in satisfaction of an accusatory instrument which had also charged him with criminal possession of marihuana in the fifth degree ( Penal Law § 221.10 [1] ). On appeal, defendant contends that, since he was charged with criminal possession of marihuana in the fifth degree, an offense which has since been decriminalized, that count has been rendered facially insufficient and, thus, his plea and resulting conviction should be vacated. Additionally, defendant contends that it was an abuse of discretion for the court to have imposed a $50 DNA databank fee in this matter.

Here, in order to be entitled to a dismissal of an accusatory instrument on appeal as a matter of law for a jurisdictional deficiency, defendant needed to successfully challenge the facial sufficiency of the count to which he pleaded guilty (see People v. Dumay , 23 N.Y.3d 518, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ; People v. Mason , 62 Misc. 3d 75, 78, n. 2, 92 N.Y.S.3d 531 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019] ). However, defendant solely challenges the count charging him with criminal possession of marihuana in the fifth degree, to which he did not plead guilty and of which he was not convicted. Consequently, defendant is not entitled to relief pursuant to CPL 160.50 (5), which pertains to convictions of certain marihuana—related offenses (cf. People v. Lynch , 69 Misc. 3d 147[A], 2020 N.Y. Slip Op. 51424[U], 2020 WL 7018546 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2020] ).

When defendant pleaded guilty in 2019, the imposition of a DNA databank fee was mandatory pursuant to CPL 420.35 (2) and Penal Law § 60.35. As the court did not have discretion to decide whether to impose the fee, it could not have abused its discretion, as claimed by defendant on appeal, in imposing such fee. Nonetheless, CPL 420.35 (2-a) now permits the waiver of mandatory surcharges and...