Opinion
5419, 5420.
April 21, 2005.
Judgments, Supreme Court, Bronx County (Robert L. Cohen, J., at pleas; John P. Collins, J., at sentence), rendered August 14, 2003 and September 23, 2003, convicting defendant, upon her pleas of guilty, of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree, and criminal sale of a controlled substance in or near school grounds, and sentencing her, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the sentences and remanding for resentencing, and otherwise affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Jennifer Marinaccio of counsel), for respondent.
Concur — Saxe, J.P., Marlow, Ellerin, Nardelli and Sweeny, JJ.
The People did not file a predicate felony statement and the court never adjudicated defendant a second felony offender. Under the circumstances of this case, we conclude that a remand for resentencing is warranted in the interest of justice ( compare People v. Bouyea, 64 NY2d 1140). We further note and, as the People concede, since the crimes for which the DNA databank fee was imposed were committed before the effective date of the legislation (Penal Law § 60.35 [e]) providing for the imposition of such fees, that fee should not have been imposed.