Opinion
2006KN036523.
Decided September 18, 2006.
No appearance for the People.
No appearance for the N.Y.C. Department of Probation.
Legal Aid Society, by Robert C. Newman, Esq., for the Defendant.
Defendant was charged by Complaint dated May 27, 2006 with Assault in the Third Degree (PL § 120.00(1)), Menacing in the Third Degree (PL § 120.15), Reckless Endangerment in the Second Degree (PL § 120.20), and Harassment in the Second Degree (PL § 240.26(1)), based on allegations that he punched the informant about the face on or about May 20, 2006. On that date, Defendant was 16 years old.
Defendant pleaded guilty on July 6, 2006 to Assault in the Third Degree (PL § 120.00), a class A misdemeanor, with a promised sentence of time served and youthful offender adjudication if found eligible. Defendant was required to provide the Court with a copy of his birth certificate before he could be adjudicated a youthful offender, as Probation was unable to verify Defendant's date of birth. A birth certificate was subsequently filed with the Court, showing Defendant's date of birth to be November 25, 1989.
On July 25, 2006, Defendant was sentenced to time served. At the sentencing, the Court stayed the taking of Defendant's DNA sample so that Defendant could make the instant motion to be relieved from the requirement of providing a DNA sample pursuant to Executive Law § 995-c(3).
Defendant is Found to be a Youthful Offender
Defendant is eligible to be sentenced as a youthful offender. A defendant is eligible for adjudication as a youthful offender if he or she was at least sixteen years old and less than nineteen years old when he or she committed the crime, so long as he or she does not meet any of the exceptions laid out in CPL § 720.10(2). Defendant was sixteen years old when he committed the instant offense. He has never before been convicted of a felony, or been adjudicated a youthful offender where he would otherwise have been convicted of a felony, or been adjudicated a juvenile delinquent who committed a designated felony act. Therefore, Defendant remains eligible for adjudication as a youthful offender.
As the promised sentence included youthful offender adjudication if eligible, Defendant's conviction and sentence are hereby vacated. CPL § 720.20(3). Defendant is found to be a youthful offender, and is re-sentenced to time served pursuant to PL § 60.02(1).
Assault in the Third Degree is a Designated Offense for DNA Collection
As of June 23, 2006, Assault in the Third Degree (PL § 120.00) was added to the list of designated offenses under Executive Law § 995(7), offenders of which must provide DNA samples pursuant to Executive Law § 995-c(3). L 2006, ch 2, § 1. The amendment is retrospective to the extent that defendants convicted of these crimes before June 23, 2006 must provide DNA samples "where service of the sentence imposed upon conviction of such designated offense has not been completed prior to such effective date." L 2006, ch 2, § 2.
The Complaint charged that Defendant committed the designated offense on May 20, 2006. Given that Defendant did not plead guilty until July 6, 2006, and was not sentenced until July 25, 2006, he would be obliged to provide a DNA sample had he been convicted of the designated offense.
Defendant is Not Required to Provide a DNA Sample
Executive Law § 995(7) requires "designated offenders" to provide DNA samples. A designated offender is a person "convicted of and sentenced for" any of the crimes listed in § 995(7). When an eligible youth is found to be a youthful offender, "the court must direct that the conviction be deemed vacated and replaced by a youthful offender finding." CPL § 720.20(3). As a youthful offender, Defendant is not deemed to have been convicted of the charge. CPL § 720.35(1) ("A youthful offender adjudication is not a judgment of conviction for a crime or any other offense"); People v. Floyd J., 61 NY2d 895, 462 NE2d 1194, 474 NYS2d 476 (1984).
In 2004, the Legislature overruled Floyd J., supra, by amending PL § 60.35 to add PL § 60.35(10), which provides that the statute's provisions regarding the payment of the DNA databank fee, as well as other fees and surcharges, are to be imposed upon youthful offender findings as well as upon convictions for the specified crimes. L 2004, ch 56, § 1 (Part F, § 2). The Legislature has chosen not to amend Executive Law § 995(7) to expand the definition of designated offenders, who are required to provide DNA samples, to include youthful offenders as well as those convicted of designated offenses. Several bills have recently been introduced which would amend § 995(7) to categorize youthful offenders as designated offenders, but none have been adopted. 2005 NY Senate-Assembly Bill S 2959, A 5474; 2005 NY Senate-Assembly Bill S 5342, A 6876; 2005 NY Senate Bill S 01018; 2005 NY Assembly Bill A 5964; 2005 NY Assembly Bill A 5967.
Defendant, found here to be a youthful offender, has not been convicted of any of the designated offenses under Executive Law § 995(7), and is not a designated offender under that statute. Defendant is therefore not required to provide a DNA sample.
Defendant is Not Required to Pay the DNA Databank Fee
Persons designated as youthful offenders based upon acts that would otherwise constitute designated offenses under Executive Law § 995(7) are generally required to pay the $50 DNA databank fee, despite the fact that they are not required to provide DNA samples. PL § 60.35(1)(v); PL § 60.35 (10). However, where the defendant committed his offense before the effective date of the legislation adding it to the list of designated offenses, the DNA databank fee should not be imposed. See People v. Hill, 2006 NY Slip Op 535, 25 AD3d 724, 807 NYS2d 310 (2nd Dept. 2006); People v. Frederick, 2006 NY Slip. Op. 5207, 30 AD3d 346, 817 NYS2d 287 (1st Dept. 2006); People v. Fabela, 240 AD2d 677, 659 NYS2d 1018 (2nd Dept. 1997). To impose the DNA databank fee under those circumstances would implicate the Ex Post Facto Clause of the United States Constitution. See People v. Sullivan, 6 AD3d 1175, 775 NYS2d 696 (4th Dept. 2004); People v. Hager, 5 AD3d 981, 773 NYS2d 317 (4th Dept. 2004); People v. Goldwire, 301 AD2d 677, 752 N.Y.S. 906 (3rd Dept. 2003); People v. Williams, 159 AD2d 264, 552 NYS2d 265 (1st Dept. 1990).
Assault in the Third Degree (PL § 120.00) was not added to the list of designated offenses under Executive Law § 995(7) until June 23, 2006. Because Defendant committed his offense on or about May 20, 2006, over a month prior to the effective date of the legislation, he is not required to pay the DNA databank fee.
Conclusion
Defendant's conviction is vacated, and Defendant is found to be a youthful offender and re-sentenced to time served. Because of Defendant's youthful offender adjudication, he is not required to provide a DNA sample. Furthermore, because Defendant committed his offense prior to June 23, 2006, he is not required to pay the DNA databank fee.
The foregoing is the decision and order of the Court.