Opinion
1018 KA 16–00436
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Jean SANCHEZ, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the surcharge, DNA databank fee, and crime victim assistance fee and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree ( Penal Law § 125.25 [1 ] ). We reject defendant's contention that New York's statutory scheme (see Penal Law §§ 10.00[18] ; 30.00[2]; CPL 1.20[42] ; 180.75, 210.43), which permits, as relevant here, 13–year–old persons to be criminally responsible for acts constituting murder in the second degree ( Penal Law § 125.25[1], [2] ), violates the Due Process or Equal Protection Clauses of the Federal and State Constitutions (see People v. Mayfield, 208 A.D.2d 391, 392, 618 N.Y.S.2d 208 [1st Dept. 1994] ; People v. Killeen, 198 A.D.2d 233, 233, 603 N.Y.S.2d 510 [2d Dept. 1993], lv denied 82 N.Y.2d 926, 610 N.Y.S.2d 178, 632 N.E.2d 488 [1994] ; see generally People v. Drayton, 39 N.Y.2d 580, 585–586, 385 N.Y.S.2d 1, 350 N.E.2d 377 [1976], rearg. denied 39 N.Y.2d 1058, 387 N.Y.S.2d 1033, 355 N.E.2d 393 [1976] ).
We agree with defendant that his waiver of the right to appeal is invalid (see People v. Gramza, 140 A.D.3d 1643, 1644, 33 N.Y.S.3d 620 [4th Dept. 2016], lv denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; People v. Collins, 129 A.D.3d 1676, 1676, 12 N.Y.S.3d 477 [4th Dept. 2015], lv denied 26 N.Y.3d 1038, 22 N.Y.S.3d 168, 43 N.E.3d 378 [2015] ; People v. Nicelli, 74 A.D.3d 1235, 1236–1237, 904 N.Y.S.2d 119 [2d Dept. 2010] ), but we nevertheless reject his challenge to the severity of the sentence. As the People correctly concede, however, the surcharge, DNA databank fee, and crime victim assistance fee must be vacated because defendant is a juvenile offender (see Penal Law §§ 60.00[2] ; 60.10; People v. Dennis R., 159 AD3d 1444, 1444, 70 N.Y.S.3d 114 [4th Dept. 2018], lv denied 31 N.Y.3d 1080, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018] ; People v. Stump, 100 A.D.3d 1457, 1458, 953 N.Y.S.2d 441 [4th Dept. 2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ). We therefore modify the judgment accordingly.