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

The PEOPLE of the State of New York, Respondent, v. Digna JIMENEZ, Defendant-Appellant.

Decided: November 15, 2005

ANDRIAS, J.P., SULLIVAN, WILLIAMS, MALONE, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Leilani J. Rodriguez of counsel), for respondent.

Judgment, Supreme Court, Bronx County (John N. Byrne, J. at plea;  John P. Collins, J. at sentence), rendered May 20, 2004, convicting defendant of criminal sale of a controlled substance in or near school grounds, and sentencing her, as a second felony offender, to a term of 4 1/212 to 9 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 May 15, 2003 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 her right to appeal.