PEOPLE v. COHEN (2006)

Appeal by the defendant from an order of the Supreme Court, Westchester County (Molea, J.), dated October 7, 2005, which, after a hearing pursuant to Correction Law article 6-C, designated him a level two sex offender and imposed a $50 sex offender registration fee upon the defendant.

ORDERED that the order is modified, on the law, by deleting the provision thereof imposing a $50 sex offender registration fee upon the defendant pursuant to Penal Law § 60.35[1][a][iv];  as so modified, the order is affirmed, without costs of disbursements.

There was clear and convincing evidence to support the Supreme Court's determination to designate the defendant a level two sex offender, and thus it will not be disturbed on appeal (see People v. Inghilleri, 21 A.D.3d 404, 799 N.Y.S.2d 793;  People v. Brown, 7 A.D.3d 595, 775 N.Y.S.2d 885;  People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704).

However, the court improperly imposed the $50 sex offender registration fee upon the defendant since it is undisputed that the underlying offense was committed prior to the 2003 amendment to Penal Law § 60.35 which provided for the imposition of a sex offender registration fee (see Penal Law § 60.35 [1][a] [iv];  People v. Lloyd, 23 A.D.3d 296, 805 N.Y.S.2d 20;  People v. Allen, 17 A.D.3d 151, 791 N.Y.S.2d 826;  see also People v. Valdelamar, 122 A.D.2d 289, 505 N.Y.S.2d 192).

The defendant's remaining contentions are without merit.