Opinion
No. 2787.
February 14, 2008.
Judgment, Supreme Court, Bronx County (Efrain Alvarado, J., at plea; Seth Marvin, J., at sentence), rendered June 2, 2006, convicting defendant of criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2½ to 5 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.
Steven Banks, The Legal Aid Society, New York (Laura Boyd of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.
Before: Andrias, J.P., Friedman, Sweeny and Moskowitz, JJ.
At the first of two plea proceedings, defendant made a valid waiver of his right to appeal as part of the plea agreement ( see People v Lopez, 6 NY3d 248, 255-256). As defendant expressly acknowledged, the second proceeding incorporated by reference the minutes of the prior proceeding. Accordingly, defendant's waiver forecloses his present claim that his sentence was excessive ( see People v Givens, 36 AD3d 454, lv denied, 8 NY3d 922). In any event, we find no basis to reduce his sentence.
As the People concede, since the crime was committed prior to the effective date of the legislation providing for the imposition of a DNA databank fee, that fee should not have been imposed.