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

The PEOPLE of the State of New York, Respondent, v. Fabian JOSEPH, Defendant-Appellant.

Decided: March 31, 2005

ELLERIN, J.P., NARDELLI, WILLIAMS, GONZALEZ, SWEENY, JJ. Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered October 22, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing him to concurrent terms of 5 to 15 years and 2 to 6 years, respectively, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Issues of credibility and identification, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis for disturbing its determinations.

We 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 the imposition of a DNA databank fee, that fee should not have been imposed.

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