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

The PEOPLE of the State of New York, Respondent, v. Russell CHEEK, Defendant-Appellant.

Decided: February 16, 2006

TOM, J.P., FRIEDMAN, GONZALEZ, SWEENY, McGUIRE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Natalie Rea of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Jessica Carmela Darpino of counsel), for respondent.

Judgment, Supreme Court, Bronx County (John A. Barone, J.), rendered September 23, 2003, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 2 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

As the People concede, 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.