People v. Williams

11 A.D.3d 221, 782 N.Y.S.2d 356, 2004 N.Y. App. Div. LEXIS 11533

Opinion

Judgment, Supreme Court, Bronx County (Dominick R. Massaro, J.), rendered June 19, 2003, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of six years, and imposing, inter alia, a DNA databank fee of $50, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

Defendant’s valid waiver of his right to appeal encompassed his present claim that his agreed-upon sentence is excessive (see People v Hidalgo, 91 NY2d 733 [1998]). In any event, were we to find otherwise, we would perceive no basis for reducing the sentence.

However, as the People concede, since the crime was committed before the effective date of the legislation (Penal Law § 60.35 [1] [e]) providing for 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—Tom, J.P, Williams, Friedman, Marlow and Sweeny, JJ.