Opinion
4570
November 9, 2004
Judgment, Supreme Court, Bronx County (Richard Lee Price, J.), rendered June 25, 2003, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 1 to 3 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.
Before: Nardelli, J.P., Mazzarelli, Lerner, Friedman and Marlow, JJ.
The court properly exercised its discretion in denying defendant's motion to withdraw his guilty plea without appointing new counsel. Defendant's pro se motion simply made a conclusory claim of innocence that was contradicted by the record of the thorough allocution. Counsel's refusal to join in this meritless motion, and his explanatory comments, did not constitute ineffective assistance of counsel ( see e.g. People v. Sosa, 258 AD2d 312, lv denied 93 NY2d 902), did not create a conflict of interest impacting on defendant's representation ( see Cuyler v. Sullivan, 446 US 335, 348-350), and did not influence the court's decision to deny the motion.
As the People concede, since the crime was committed before the effective date of the legislation (Penal Law § 60.35 [e]) imposing a DNA databank fee, that fee should not have been imposed.