People v. Camble

17 A.D.3d 235, 793 N.Y.S.2d 393, 2005 N.Y. App. Div. LEXIS 4215

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 2005
• Status: Published

Opinion

Judgments, Supreme Court, Bronx County (Robert L. Cohen, J., at pleas; John E Collins, J., at sentence), rendered August 14, 2003 and September 23, 2003, convicting defendant, upon her pleas of guilty, of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree, and criminal sale of a controlled substance in or near school grounds, and sentencing her, as a second felony offender, to concurrent terms of 4V2 to 9 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the sentences and remanding for resentencing, and otherwise affirmed.

The People did not file a predicate felony statement and the court never adjudicated defendant a second felony offender. Under the circumstances of this case, we conclude that a remand for resentencing is warranted in the interest of justice (compare People v Bouyea, 64 NY2d 1140 [1985]). We further note and, as the People concede, since the crimes for which the DNA databank fee was imposed were committed before the effective date of the legislation (Penal Law § 60.35 [1] [e]) providing for the imposition of such fees, that fee should not have been imposed. Concur—Saxe, J.P., Marlow, Ellerin, Nardelli and Sweeny, JJ.