People v. Hodges

Appellate Division of the Supreme Court of New York

People v. Hodges

46 A.D.3d 479, 848 N.Y.S.2d 644

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

DecidedDecember 27, 2007

StatusPublished

This text of 46 A.D.3d 479 (People v. Hodges) 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. Hodges, 46 A.D.3d 479, 848 N.Y.S.2d 644 (N.Y. Ct. App. 2007).

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Opinion

Judgements, Supreme Court, Bronx County (Albert Lorenzo, J., at pleas; Seth L. Marvin, J., at sentence), rendered December 2, 2005, as amended April 26, 2007, convicting defendant of two counts of criminal sale of a controlled substance, and sentencing him, as a second felony offender, to concurrent terms of 4x/2 to 9 years and 3V2 years, respectively, unanimously modified, on the law, to the extent of vacating the DNA databank fee with respect to indictment 2705/03, and otherwise affirmed.

Under the 2003 indictment, defendant received the minimum sentence permitted by law. On appeal, he asks this Court to reduce that conviction to a lesser offense and impose a lesser sentence. In the first place, defendant made a valid waiver of his right to appeal (see People v Ramos, 7 NY3d 737 [2006]; People v Lopez, 6 NY3d 248 [2006]), which forecloses that argument. In any event, we perceive no basis upon which to reduce defendant’s conviction to a lesser offense, since “we do not consider it appropriate to do so for the purpose of granting dispensations from mandatory sentencing statutes” (People v Velasquez, 25 AD3d 501 [2006], lv denied 6 NY3d 854 [2006]). Moreover, defendant is not deserving of a lesser sentence.

As the People concede with respect to the 2003 indictment, since the crime was committed prior to the effective date of the legislation (Penal Law § 60.35 [1] [a] [v] [former (1) (e)]), providing for the imposition of a DNA databank fee, that fee should not have been imposed. Concur—Tom, J.P., Friedman, Nardelli and Catterson, JJ.

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Judgements, Supreme Court, Bronx County (Albert Lorenzo, J., at pleas; Seth L. Marvin, J., at sentence), rendered December 2, 2005, as amended April 26, 2007, convicting defendant of two counts of criminal sale of a controlled substance, and sentencing him, as a second felony offender, to concurrent terms of 4x/2 to 9 years and 3V2 years, respectively, unanimously modified, on the law, to the extent of vacating the DNA databank fee with respect to indictment 2705/03, and otherwise affirmed.

Under the 2003 indictment, defendant received the minimum sentence permitted by law. On appeal, he asks this Court to reduce that conviction to a lesser offense and impose a lesser sentence. In the first place, defendant made a valid waiver of his right to appeal (see People v Ramos, 7 NY3d 737 [2006]; People v Lopez, 6 NY3d 248 [2006]), which forecloses that argument. In any event, we perceive no basis upon which to reduce defendant’s conviction to a lesser offense, since “we do not consider it appropriate to do so for the purpose of granting dispensations from mandatory sentencing statutes” (People v Velasquez, 25 AD3d 501 [2006], lv denied 6 NY3d 854 [2006]). Moreover, defendant is not deserving of a lesser sentence.

As the People concede with respect to the 2003 indictment, since the crime was committed prior to the effective date of the legislation (Penal Law § 60.35 [1] [a] [v] [former (1) (e)]), providing for the imposition of a DNA databank fee, that fee should not have been imposed. Concur—Tom, J.P., Friedman, Nardelli and Catterson, JJ.

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Bluebook (online)

46 A.D.3d 479, 848 N.Y.S.2d 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hodges-nyappdiv-2007.

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