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

523
KA 12-00447
PRESENT: SCUDDER, P.J., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                                  MEMORANDUM AND ORDER

DYLAN BARCLAY, ALSO KNOWN AS DYLAN A. BARCLAY,
DEFENDANT-APPELLANT.


BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.


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