People v Arcelio Sepulveda

People v Sepulveda 2005 NY Slip Op 07849 [22 AD3d 407] October 25, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

The People of the State of New York, Respondent,
v
Arcelio Sepulveda, Appellant.

—[*1]Judgment, Supreme Court, Bronx County (Ira R. Globerman, J.), rendered June 17, 2003, convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him to a term of 12½ years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

Defendant knowingly and intelligently waived his right to appeal, and this waiver encompassed his excessive sentence claim (People v Hidalgo, 91 NY2d 733 [1998]; People v Seaberg, 74 NY2d 1, 9-10 [1989]). In any event, were we to find that defendant did not validly waive his right to appeal, we would perceive no basis for reducing the sentence.

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. Since this issue involves the substantive legality of the sentence, it survives defendant's waiver of his right to appeal. Concur—Tom, J.P., Andrias, Sullivan, Gonzalez and Malone, JJ.