People v Bristo

People v Bristo 2007 NY Slip Op 02423 [38 AD3d 359] March 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

The People of the State of New York, Respondent,
v
Boisey Bristo, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Marissa K. Gould of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Thomas Farber, J.), rendered June 15, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

The verdict was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]).

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. Concur—Mazzarelli, J.P., Friedman, Buckley, Catterson and Malone, JJ.