PEOPLE v. MORRISON (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 2 1/212 to 5 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

 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 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).   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 A.D.3d 454, 831 N.Y.S.2d 30 [2007] lv. denied 8 N.Y.3d 922, 834 N.Y.S.2d 513, 866 N.E.2d 459 [2007] ).   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.