People v. Carmona

Appellate Division of the Supreme Court of New York

People v. Carmona

15 A.D.3d 184, 789 N.Y.S.2d 36, 2005 N.Y. App. Div. LEXIS 957

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 3, 2005

StatusPublished

This text of 15 A.D.3d 184 (People v. Carmona) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Carmona, 15 A.D.3d 184, 789 N.Y.S.2d 36, 2005 N.Y. App. Div. LEXIS 957 (N.Y. Ct. App. 2005).

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Opinion

Judgment, Supreme Court, Bronx County (Ira R. Globerman, J., at plea; John S. Moore, J., at sentence), rendered September 9, 2003, convicting defendant of attempted assault in the first degree, and sentencing him to a term of six years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

Defendant knowingly and intelligently waived his right to appeal, and this waiver encompassed his excessive sentence claim [185]*185(see People v Hidalgo, 91 NY2d 733 [1998]). Accordingly, review of that claim is foreclosed (People v Seaberg, 74 NY2d 1, 9-10 [1989]). In any event, were we to find otherwise, we would perceive no basis for reducing the sentence.

As the People concede, since the crime was committed before the effective date of the legislation (Penal Law § 60.35 [1] [e]) providing for the imposition of a DNA databank fee, that fee should not have been imposed. Since this issue involves the substantive legality of the sentence, it survives defendant’s waiver of his right to appeal. Concur — Saxe, J.P., Friedman, Marlow, Sullivan and Williams, JJ.

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Judgment, Supreme Court, Bronx County (Ira R. Globerman, J., at plea; John S. Moore, J., at sentence), rendered September 9, 2003, convicting defendant of attempted assault in the first degree, and sentencing him to a term of six years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

Defendant knowingly and intelligently waived his right to appeal, and this waiver encompassed his excessive sentence claim [185]*185(see People v Hidalgo, 91 NY2d 733 [1998]). Accordingly, review of that claim is foreclosed (People v Seaberg, 74 NY2d 1, 9-10 [1989]). In any event, were we to find otherwise, we would perceive no basis for reducing the sentence.

As the People concede, since the crime was committed before the effective date of the legislation (Penal Law § 60.35 [1] [e]) providing for the imposition of a DNA databank fee, that fee should not have been imposed. Since this issue involves the substantive legality of the sentence, it survives defendant’s waiver of his right to appeal. Concur — Saxe, J.P., Friedman, Marlow, Sullivan and Williams, JJ.

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Bluebook (online)

15 A.D.3d 184, 789 N.Y.S.2d 36, 2005 N.Y. App. Div. LEXIS 957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-carmona-nyappdiv-2005.

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