PEOPLE v. LOPEZ

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

The PEOPLE of the State of New York, Respondent, v. Sandro LOPEZ, Defendant-Appellant.

Decided: March 22, 2005

TOM, J.P., ANDRIAS, SAXE, FRIEDMAN, NARDELLI, JJ. Robert S. Dean, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Jonathan Zucker of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered January 5, 2004, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to a term of 2 1/212 to 5 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

 Defendant's valid waiver of his right to appeal encompassed his excessive sentence claim and thus forecloses interest of justice review (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 before the effective date of the legislation (Penal Law § 60.35[1][e] ) providing for imposition of a DNA databank fee, that fee should not have been imposed.   Since this issue involves the substantive illegality of the sentence, it survives defendant's waiver of his right to appeal.