PEOPLE v. HORTON (2009)

Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Robert A. HORTON, Defendant-Appellant.

Decided: March 20, 2009

PRESENT: HURLBUTT, J.P., MARTOCHE, CENTRA, PERADOTTO, AND GORSKI, JJ.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of Counsel), for Defendant-Appellant. Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion of Counsel), for Respondent.

On appeal from a judgment convicting him upon his plea of guilty of absconding from temporary release in the first degree (Penal Law § 205.17), defendant contends that Supreme Court erred in imposing a DNA databank fee pursuant to Penal Law § 60.35 (former [1][e] ). We agree. That fee may be imposed only “where the offender has been convicted within the previous five years of one of the other felonies specified in this subdivision,” i.e., Executive Law § 995(7) (§ 995[7][a]; see Penal Law § 60.35 [former (1)(e) ] ), and defendant's prior conviction of forgery in the second degree is not one of those specified felonies. Although defendant failed to preserve his contention for our review (see CPL 470.05[2]; People v. King, 57 A.D.3d 1495, 869 N.Y.S.2d 832), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ), and we therefore modify the judgment accordingly.

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the DNA databank fee and as modified the judgment is affirmed.

MEMORANDUM:

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