PEOPLE v. BOWEN FRITH (2020)

On October 18, 2018, defendant was arraigned and charged with one count of menacing in the second degree (Penal Law § 120.14[1]), one count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2]), and one count of menacing in the third degree (Penal Law § 120.15). Pursuant to a repleader agreement on January 29, 2019, defendant pleaded guilty to menacing in the second degree, a misdemeanor, and on January 28, 2020, the complaint was amended to add the charge of harassment in the second degree, a violation (Penal Law § 240.26), to which defendant also pleaded guilty. Defendant agreed to participate in adolescent individual counseling sessions provided by Midtown Community Court and remain arrest free for six months in exchange for a vacatur of the misdemeanor guilty plea and a sentence of time served on the guilty plea to the violation.

On February 25, 2020, at a compliance conference, Midtown Community Court staff informed the Court that defendant completed her counseling mandate and the matter was adjourned for compliance and sentencing to July 25, 2020. Due to the ongoing COVID-19 public health crisis, the Court administratively adjourned this matter to August 26, 2020 for sentencing.

All parties appeared virtually on August 26, 2020. At sentencing, defendant moved for an order waiving the mandatory surcharge pursuant to Criminal Procedure Law (CPL) section 420.35(2-a), which was signed into law by the Governor of the State of New York a few days prior. The People took no position on defendant's motion.

CPL 420.35(2-a) permits the waiver of any mandatory surcharge or additional surcharge when the court finds that the defendant was under the age of twenty-one at the time the offense was committed and that the surcharge would pose an unreasonable hardship for the defendant or any other person dependent upon the defendant for financial support. Here, defendant was under the age of twenty-one at the time of the offense. Defense counsel, who was appointed, submitted that defendant is indigent and recently became a parent. Accordingly, the defendant's motion to waive the mandatory surcharge pursuant to CPL 420.35(2-a) is granted.

This constitutes the Decision and Order of the Court.

Ilana J. Marcus, J.