PEOPLE v. MEJIA (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Suzanne J. Melendez, J.), rendered September 5, 2017, convicting him of attempted rape in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the mandatory surcharge and fees imposed at sentencing (see Penal Law § 60.35[1][a]) should be waived pursuant to CPL 420.35(2–a) is unpreserved for appellate review (see id. § 470.05[2];  People v. Frazier, 211 A.D.3d 1033, 179 N.Y.S.3d 596;  People v. Taylor, 209 A.D.3d 772, 773, 174 N.Y.S.3d 898).  In any event, the defendant's contention is without merit.  CPL 420.35(2–a) authorizes a court, upon certain enumerated grounds (see id. § 420.35[2–a][a]–[c]), to waive the otherwise “mandatory” surcharge and fees imposed by statute (Penal Law § 60.35[a];  see generally People v. Jones, 26 N.Y.3d 730, 733–737, 27 N.Y.S.3d 431, 47 N.E.3d 710), where an individual was “under the age of twenty-one at the time the offense was committed” (CPL 420.35[2–a]).  Here, although it is undisputed that the defendant was under the age of 21 at the time the underlying offense was committed, the record does not also demonstrate that a waiver of the mandatory surcharge and fees was warranted under any of the grounds enumerated in the statute (see id. § 420.35[2–a][a]–[c];  People v. Attah, 203 A.D.3d 1063, 1064, 162 N.Y.S.3d 784).  Under the circumstances, and in the absence of the People's consent, we decline to waive the surcharge and fees imposed at sentencing in the interest of justice (see People v. Forero, 236 A.D.3d 816, 817, 227 N.Y.S.3d 740;  People v. Acevedo, 210 A.D.3d 1106, 1107, 177 N.Y.S.3d 493;  People v. Attah, 203 A.D.3d at 1064, 162 N.Y.S.3d 784).

GENOVESI, J.P., FORD, VENTURA and QUIRK, JJ., concur.