PEOPLE v. SHARP (2003)

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered March 27, 2002, convicting defendant upon his plea of guilty of the crime of robbery in the third degree.

Pursuant to a negotiated plea agreement, defendant pleaded guilty to the crime of robbery in the third degree and was sentenced as a second felony offender to a prison term of 3 1/212 to 7 years.   At the sentencing hearing, County Court advised defendant that he would be required to provide a DNA sample for identification and inclusion in a state DNA identification index.   County Court's issuance of this directive was erroneous.  Executive Law § 995-c (3) requires certain “designated offenders * * * to provide a sample appropriate for DNA testing * * * to be included in a state DNA identification index.”   “Designated offenders,” as defined by Executive Law § 995(7), are those who have been convicted of one or more of the crimes listed in the statute.   Defendant does not fit the statutory classification of “designated offender” as his crime of robbery in the third degree, a class D nonviolent felony (see Penal Law § 160.05), is not one of the listed crimes.   Hence, the judgment of conviction is modified by reversing so much thereof as directed defendant to submit a DNA sample.

ORDERED that the judgment is modified, on the law, by reversing so much thereof as directed defendant to submit a sample for DNA testing and inclusion in the state DNA identification index;  and, as so modified, affirmed.