People v Hodges

People v Hodges 2007 NY Slip Op 10489 [46 AD3d 479] December 27, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent,
v
Marty Hodges, Also Known as William Johnson, Appellant.

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

Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky, III of counsel), for respondent.

Judgments, Supreme Court, Bronx County (Albert Lorenzo, J., at pleas; Seth L. Marvin, J., at sentence), rendered December 2, 2005, as amended April 26, 2007, convicting defendant of two counts of criminal sale of a controlled substance, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years and 3½ years, respectively, unanimously modified, on the law, to the extent of vacating the DNA databank fee with respect to indictment 2705/03, and otherwise affirmed.

Under the 2003 indictment, defendant received the minimum sentence permitted by law. On appeal, he asks this Court to reduce that conviction to a lesser offense and impose a lesser sentence. In the first place, defendant made a valid waiver of his right to appeal (see People v Ramos, 7 NY3d 737 [2006]; People v Lopez, 6 NY3d 248 [2006]), which forecloses that argument. In any event, we perceive no basis upon which to reduce defendant's conviction to a lesser offense, since "we do not consider it appropriate to do so for the purpose of granting dispensations from mandatory sentencing statutes" (People v Velasquez, 25 AD3d 501 [2006], lv denied 6 NY3d 854 [2006]). Moreover, defendant is not deserving of a lesser sentence.

As the People concede with respect to the 2003 indictment, 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—Tom, J.P., Friedman, Nardelli and Catterson, JJ.