PEOPLE v. HARRIS (2008)

Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ).   Contrary to the contention of defendant, the plea colloquy establishes that his waiver of the right to appeal was voluntarily, knowingly, and intelligently entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Cox, 39 A.D.3d 1181, 835 N.Y.S.2d 789;  People v. Gilbert, 17 A.D.3d 1164, 793 N.Y.S.2d 847, lv. denied 5 N.Y.3d 762, 801 N.Y.S.2d 257, 834 N.E.2d 1267).   That valid waiver of the right to appeal encompasses the further contention of defendant that Supreme Court erred in denying his request to be enrolled in the Comprehensive Alcohol and Substance Abuse Treatment program as part of his sentence, pursuant to Penal Law § 60.04(6) (see generally People v. Muniz, 91 N.Y.2d 570, 574-575, 673 N.Y.S.2d 358, 696 N.E.2d 182;  People v. Allen, 82 N.Y.2d 761, 763, 603 N.Y.S.2d 820, 623 N.E.2d 1170).   In any event, the record establishes that the court did not abuse its discretion in denying defendant's request (see § 60.04[6];  see People v. Edell, 45 A.D.3d 461, 845 N.Y.S.2d 733, lv. denied 9 N.Y.3d 1033, 852 N.Y.S.2d 18, 881 N.E.2d 1205).

 Although defendant failed to preserve for our review his contention that the court erred in imposing a $50 DNA databank fee pursuant to Penal Law § 60.35(1)(a)(v), preservation is not required inasmuch as that contention concerns the legality of the sentence (see generally People v. Fuller, 57 N.Y.2d 152, 156, 455 N.Y.S.2d 253, 441 N.E.2d 563;  People v. Fomby, 42 A.D.3d 894, 896, 839 N.Y.S.2d 901).   In addition, that contention is not encompassed by defendant's waiver of the right to appeal (see People v. Benavides, 19 A.D.3d 134, 135, 795 N.Y.S.2d 585, lv. denied 5 N.Y.3d 850, 806 N.Y.S.2d 170, 840 N.E.2d 139;  see also People v. Figueroa, 17 A.D.3d 1130, 794 N.Y.S.2d 262, lv. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669).   We agree with defendant that the imposition of a DNA databank fee is illegal because criminal possession of a controlled substance in the third degree is not a designated offense for purposes of imposing such a fee (see § 60.35[1][a][v];  Executive Law § 995[7][b] ).  We therefore modify the judgment accordingly.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the DNA databank fee and as modified the judgment is affirmed.

MEMORANDUM: