THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2016)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of driving while intoxicated (Vehicle and Traffic Law §§ 1192[3];  1193[1][c][i][A] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ).  The People correctly concede that the waiver of the right to appeal his conviction did not encompass defendant's contention in appeal No. 2 that the period of postrelease supervision is unduly harsh and severe and thus does not foreclose our review of that contention (see People v. Maracle, 19 NY3d 925, 927–928;  People v. Diaz, 142 AD3d 1332, 1333).  We nevertheless reject that contention.

Contrary to defendant's contention in appeal No. 1, Supreme Court did not impose a fee of $350, rather than the proper fee of $50, for the DNA databank fee (see Penal Law § 60.35[1][a][v] ).  Although the sentencing transcript reflects the imposition of a DNA databank fee of $350, the transcript further reflects that the court correctly stated the total amount due from defendant for fees and surcharges, which establishes that the court properly imposed a fee of $50.  Moreover, the certificate of conviction correctly states that $50 was assessed for the DNA databank fee.  We therefore conclude that no corrective action is necessary inasmuch as the record establishes either that the court misspoke or that there is a transcription error (see People v. Kaetzel, 117 AD3d 1187, 1190, lv. denied 24 NY3d 962).

Frances E. Cafarell

Clerk of the Court