The People v Dwayne Hough
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Attorneys and Parties
Brief Summary
Criminal sentencing, specifically whether mandatory financial penalties could be directed to be collected by civil judgment and whether the imposed period of postrelease supervision was excessive.
The County Court, Nassau County, accepted the defendant's guilty plea to attempted criminal sale of a controlled substance in the third degree and assault in the third degree, imposed sentence including postrelease supervision, and directed payment of the mandatory surcharge, crime victim assistance fee, and DNA databank fee by civil judgment.
The Appellate Division vacated only the portion of the judgment directing payment of the mandatory surcharge, crime victim assistance fee, and DNA databank fee by civil judgment, and substituted a provision directing payment pursuant to Penal Law § 60.35(5) [governing collection of mandatory surcharge, crime victim assistance fee, and DNA databank fee].
The court held that the sentencing court should not have directed those fees to be paid by civil judgment. Although the issue was unpreserved under CPL 470.05(2) [preservation rule for appellate review], the Appellate Division reached it in the interest of justice. The court rejected the defendant's separate claim that the period of postrelease supervision was excessive.
Background
Dwayne Hough appealed from a judgment of the County Court, Nassau County, rendered May 15, 2024, after he pleaded guilty to attempted criminal sale of a controlled substance in the third degree and assault in the third degree. He challenged aspects of his sentence, including the period of postrelease supervision and the direction that certain mandatory fees be paid by civil judgment.
Lower Court Decision
The County Court convicted the defendant upon his guilty plea and imposed sentence, including a period of postrelease supervision. The court also directed payment of the mandatory surcharge, crime victim assistance fee, and DNA databank fee by civil judgment.
Appellate Division Reversal
The Appellate Division modified the judgment by vacating the provision directing payment of the mandatory surcharge, crime victim assistance fee, and DNA databank fee by civil judgment and substituting a provision directing payment under Penal Law § 60.35(5). As modified, the judgment was affirmed. The appellate court otherwise upheld the sentence, including the period of postrelease supervision.
Legal Significance
This decision reinforces that New York sentencing courts must follow the collection procedure set out in Penal Law § 60.35(5) for mandatory criminal justice fees and may not simply direct payment by civil judgment. It also shows that the Appellate Division may correct an unpreserved sentencing error in the exercise of its interest-of-justice jurisdiction.
A sentencing court cannot direct mandatory surcharge-related fees to be paid by civil judgment when Penal Law § 60.35(5) controls the method of collection, and an appellate court may correct that error even if the issue was not preserved.