Opinion
2008-1882 S CR.
Decided December 2, 2009.
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.
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ.
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).
Accordingly, the judgment of conviction is affirmed.
Tanenbaum, J.P., Molia and Iannacci, JJ., concur.