PEOPLE v. WAGNER

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

The PEOPLE of the State of New York, Respondent, v. Tammy WAGNER, Defendant-Appellant.

Decided: July 02, 2009

PRESENT:  MARTOCHE, J.P., CENTRA, PERADOTTO, GREEN, AND GORSKI, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant-Appellant. Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion of Counsel), for Respondent.

 Defendant appeals from a judgment convicting her upon her plea of guilty of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39[1] ).   Contrary to the contention of defendant, the plea colloquy establishes that she voluntarily, knowingly and intelligently waived her right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).   The valid waiver by defendant of the right to appeal encompasses her challenge to the severity of the sentence (see id. at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145).   Although the further challenge by defendant to the imposition of the DNA databank fee survives that waiver (see People v. Pierre, 41 A.D.3d 1267, 836 N.Y.S.2d 466;  see also People v. Quishana M., 50 A.D.3d 1513, 856 N.Y.S.2d 387, lv. denied 10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411), defendant failed to preserve that contention for our review (see Pierre, 41 A.D.3d 1267, 836 N.Y.S.2d 466).   In any event, we conclude that defendant's challenge is lacking in merit.   Contrary to defendant's contentions, County Court was not required to pronounce the amount of that fee at sentencing (see People v. Guerrero, 12 N.Y.3d 45, 47-48, 876 N.Y.S.2d 687, 904 N.E.2d 823;  People v. Tramble, 60 A.D.3d 443, 875 N.Y.S.2d 28), and the court's failure to advise defendant that she was subject to that fee prior to the entry of the plea “did not deprive the defendant of the opportunity to knowingly, voluntarily and intelligently choose among alternative courses of action” (People v. Hoti, 12 N.Y.3d 742, 743, 878 N.Y.S.2d 645, 906 N.E.2d 373;  see People v. Taylor, 60 A.D.3d 444, 874 N.Y.S.2d 462).

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

MEMORANDUM: