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

1236
KA 11-01631
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JACOB STUMP, DEFENDANT-APPELLANT.


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

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered July 28, 2011. The judgment convicted
defendant, upon his plea of guilty, of rape 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 and
sex offender registration 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 rape in the first degree
(Penal Law § 130.35 [1]), defendant contends that his bargained-for
sentence of imprisonment of 3 to 9 years is unduly harsh and severe
and that County Court erred in directing him to pay a DNA databank fee
and a sex offender registration fee. Based on our review of the
record, we conclude that there is no basis upon which to modify the
sentence of imprisonment in the interest of justice (see CPL 470.15
[2] [c]), but we agree with defendant that the sentence should be
vacated insofar as it directed him to pay those fees.

     “Penal Law § 60.00 (2) provides that the ‘sole provision’ of
article 60 ‘that shall apply in the case of an offense committed by a
juvenile offender is section 60.10 . . . and no other provisions of
this article shall be deemed or construed to apply in any such case.’
Where statutory language is clear and unambiguous, a court is
constrained to give effect to the plain meaning of the words used”
(People v McFadden, 205 AD2d 560, 560; see People v Hurd, 220 AD2d
454, 454; William C. Donnino, Practice Commentary, McKinney’s Cons
Laws of NY, Book 39, Penal Law § 60.10). Section 60.10 (1) provides
that a juvenile offender who is convicted of a crime may be sentenced
to a term of imprisonment in accordance with section 70.05 or may be
sentenced upon a youthful offender finding in accordance with section
60.02. Here, it is undisputed that there was no youthful offender
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                                                        KA 11-01631

finding. Section 60.10 (2) provides that subdivision 60.10 (1)
applies when sentencing a juvenile offender “notwithstanding the
provisions of any other law that deals with the authorized sentence
for persons who are not juvenile offenders” other than when
considering the use of a juvenile offender conviction as a predicate
offense. Although neither Hurd nor McFadden involved DNA databank or
sex offender registration fees, the reasoning of those cases applies
herein. Section 60.10 (1) does not permit the imposition of any fines
or fees on a juvenile offender and, because section 60.10 is the sole
provision that applies to juvenile offenders, the court erred in
imposing the DNA databank and sex offender registration fees. We
therefore modify the judgment accordingly.




Entered:   November 9, 2012                    Frances E. Cafarell
                                               Clerk of the Court
