PEOPLE v. CARMONA (2005)

Judgment, Supreme Court, Bronx County (Ira R. Globerman, J. at plea;  John S. Moore, J. at sentence), rendered September 9, 2003, convicting defendant of attempted assault in the first degree, and sentencing him to a term of 6 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

 Defendant knowingly and intelligently waived his right to appeal, and this waiver encompassed his excessive sentence claim (see People v. Hidalgo, 91 N.Y.2d 733, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ).   Accordingly, review of that claim is foreclosed (People v. Seaberg, 74 N.Y.2d 1, 9-10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ).   In any event, were we to find otherwise, 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[1][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.