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

The PEOPLE of the State of New York, Respondent, v. Arcelio SEPULVEDA, Defendant-Appellant.

Decided: October 25, 2005

TOM, J.P., ANDRIAS, SULLIVAN, GONZALEZ, MALONE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Laura Boyd of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Rither Alabre of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Ira R. Globerman, J.), rendered June 17, 2003, convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him to a term of 12 1/212 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

 Defendant knowingly and intelligently waived his right to appeal, and this waiver encompassed his excessive sentence claim (People v. Hidalgo, 91 N.Y.2d 733, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998];  People v. Seaberg, 74 N.Y.2d 1, 9-10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ).   In any event, were we to find that defendant did not validly waive his right to appeal, we would perceive no basis for reducing the sentence.

 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.   Since this issue involves the substantive legality of the sentence, it survives defendant's waiver of his right to appeal.