People v Wade

People v Wade 2016 NY Slip Op 02675 Decided on April 6, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 6, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
JEFFREY A. COHEN
HECTOR D. LASALLE
FRANCESCA E. CONNOLLY, JJ.
2012-05244
(Ind. No. 102/11)

[*1]The People of the State of New York, respondent,

v

Davon Wade, appellant.

Steven A. Feldman, Uniondale, NY, for appellant.

William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered April 25, 2012, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Under Indictment No. 102/11, the defendant entered a plea of guilty to attempted criminal possession of a weapon in the second degree, in connection with a criminal offense committed on August 20, 2011, which is the subject of this appeal. Under Indictment No. 127/11, the defendant entered a plea of guilty to criminal sale of a controlled substance in the third degree, in connection with a criminal offense committed on August 9, 2011. He was sentenced under both indictments pursuant to a plea arrangement on the same date, April 25, 2012, at which time the County Court imposed a separate $50 DNA data bank fee for each conviction pursuant to Penal Law § 60.35.

The defendant's contention that Penal Law § 60.35 prohibits the imposition of two DNA data bank fees at the same sentencing proceeding is not preserved for appellate review (see People v Ruz, 70 NY2d 942, 943; People v Francis, 82 AD3d 1263; People v Fauntleroy, 57 AD3d 1167, 1168). In any event, under the circumstances here, the County Court properly imposed a DNA data bank fee for each of the defendant's convictions. The crimes underlying the convictions were both designated offenses as defined by Executive Law § 995 (7) for the purpose of imposing the DNA data bank fee (see People v Cooper, 88 AD3d 1009; Penal Law § 60.35 [1][a][v]). Moreover, Penal Law § 60.35 does not prohibit the imposition of multiple surcharges where, as here, the two convictions were for separate and distinct crimes that took place days apart from one another which, under Penal Law § 70.25, could have properly resulted in consecutive sentences (see People v Higgins, 137 AD2d 620, 621; Penal Law §§ 60.35[2]; 70.25).

HALL, J.P., COHEN, LASALLE and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court