PEOPLE v. HODGES (2007)

Judgments, Supreme Court, Bronx County (Albert Lorenzo, J. at pleas;  Seth L. Marvin, J. at sentence), rendered December 2, 2005, as amended April 26, 2007, convicting defendant of two counts of criminal sale of a controlled substance, and sentencing him, as a second felony offender, to concurrent terms of 4 1/212 to 9 years and 31/212 years, respectively, unanimously modified, on the law, to the extent of vacating the DNA databank fee with respect to indictment 2705/03, and otherwise affirmed.

 Under the 2003 indictment, defendant received the minimum sentence permitted by law.   On appeal, he asks this Court to reduce that conviction to a lesser offense and impose a lesser sentence.   In the first place, defendant made a valid waiver of his right to appeal (see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006];  People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), which forecloses that argument.   In any event, we perceive no basis upon which to reduce defendant's conviction to a lesser offense, since “we do not consider it appropriate to do so for the purpose of granting dispensations from mandatory sentencing statutes” (People v. Velasquez, 25 A.D.3d 501, 807 N.Y.S.2d 298 [2006], lv. denied 6 N.Y.3d 854, 816 N.Y.S.2d 760, 849 N.E.2d 983 [2006] ).   Moreover, defendant is not deserving of a lesser sentence.

 As the People concede with respect to the 2003 indictment, since the crime was committed prior to the effective date of the legislation (Penal Law § 60.35 [1][a][v][former (1)(e) ] ), providing for the imposition of a DNA databank fee, that fee should not have been imposed.