PEOPLE v. HAWKEY (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of disseminating indecent material to minors in the first degree as a sexually motivated felony (Penal Law §§ 130.91, former 235.22), defendant contends that the supplemental sex offender victim fee should be vacated, for two reasons. First, defendant contends that the fee should not have been imposed inasmuch as he was convicted of an offense contained in article 235 of the Penal Law (see § 60.35 [1] [b]). Second, defendant contends that the fee should be vacated inasmuch as County Court failed to pronounce its imposition at sentencing. Assuming, arguendo, that preservation is not required under the circumstances of this case (cf. People v. Guerrero, 45 A.D.3d 313, 313, 844 N.Y.S.2d 698 [1st Dept. 2007], affd 12 N.Y.3d 45, 876 N.Y.S.2d 687, 904 N.E.2d 823 [2009]; see generally People v. Conceicao, 26 N.Y.3d 375, 381-382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015]; People v. Carrington, 238 A.D.3d 893, 894, 235 N.Y.S.3d 108 [2d Dept. 2025]), we conclude that defendant's contentions lack merit. Here, defendant's conviction results from an offense contained in article 130 of the Penal Law, and thus the supplemental sex offender victim fee is mandated pursuant to Penal Law § 60.35 (1) (b) (see generally People v. Adames, 227 A.D.3d 483, 483, 208 N.Y.S.3d 609 [1st Dept. 2024], lv denied 42 N.Y.3d 969, 219 N.Y.S.3d 621, 244 N.E.3d 1080 [2024]; People v. Bradshaw, 210 A.D.3d 44, 47-48, 175 N.Y.S.3d 272 [2d Dept. 2022], lv denied 39 N.Y.3d 1153, 190 N.Y.S.3d 672, 211 N.E.3d 1125 [2023], reconsideration denied 40 N.Y.3d 996, 197 N.Y.S.3d 110, 219 N.E.3d 871 [2023]). Moreover, inasmuch as the supplemental sex offender victim fee is not part of the sentence, the court was not required to “pronounce [it] in ․ defendant's presence during sentencing” (Guerrero, 12 N.Y.3d at 47, 876 N.Y.S.2d 687, 904 N.E.2d 823).

We note that the uniform sentence and commitment form fails to indicate that defendant's conviction of disseminating indecent material to minors in the first degree was as a sexually motivated felony, and it must be amended accordingly (see People v. Bullard-Daniel, 203 A.D.3d 1630, 1633, 163 N.Y.S.3d 726 [4th Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 444, 191 N.E.3d 396 [2022]; see generally People v. Brown, 166 A.D.3d 1579, 1580, 85 N.Y.S.3d 908 [4th Dept. 2018], lv denied 32 N.Y.3d 1169, 97 N.Y.S.3d 630, 121 N.E.3d 257 [2019]).