Opinion
5832.
April 7, 2005.
Judgment, Supreme Court, Bronx County (Steven Lloyd Barrett, J.), rendered September 29, 2003, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the first degree (five counts), criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (six counts), assault in the first degree, assault in the second degree, assault on a police officer and attempted escape in the first degree, and sentencing him to an aggregate term of eight years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Carol A. Zeldin of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Alexis Pimentel of counsel), for respondent.
Before: Mazzarelli, J.P., Saxe, Ellerin, Gonzalez and Catterson, JJ.
Defendant knowingly and intelligently waived his right to appeal, and this waiver encompassed his excessive sentence claim ( People v. Hidalgo, 91 NY2d 733). In any event, were we to find that defendant did not validly waive his right to appeal, 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 [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.