People v Morrison

People v Morrison 2008 NY Slip Op 01413 [48 AD3d 288] February 14, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 16, 2008

The People of the State of New York, Respondent,
v
Luther Morrison, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York City (Laura Boyd of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Efrain Alvarado, J., at plea; Seth Marvin, J., at sentence), rendered June 2, 2006, convicting defendant of criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2½ to 5 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

At the first of two plea proceedings, defendant made a valid waiver of his right to appeal as part of the plea agreement (see People v Lopez, 6 NY3d 248, 255-256 [2006]). As defendant expressly acknowledged, the second proceeding incorporated by reference the minutes of the prior proceeding. Accordingly, defendant's waiver forecloses his present claim that his sentence was excessive (see People v Givens, 36 AD3d 454 [2007], lv denied 8 NY3d 922 [2007]). In any event, we find no basis to reduce his sentence.

As the People concede, since the crime was committed prior to the effective date of the legislation providing for the imposition of a DNA databank fee, that fee should not have been imposed. Concur—Andrias, J.P., Friedman, Sweeny and Moskowitz, JJ.