People v Digna Jimenez

People v Jimenez 2005 NY Slip Op 08657 [23 AD3d 248] November 15, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

The People of the State of New York, Respondent,
v
Digna Jimenez, Appellant.

—[*1]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 4½ 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. Concur—Andrias, J.P., Sullivan, Williams and Malone, JJ.