Opinion
04-06-2016
The PEOPLE, etc., respondent, v. Davon WADE, appellant.
Steven A. Feldman, Uniondale, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Steven A. Feldman, Uniondale, N.Y., for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
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 N.Y.2d 942, 943, 524 N.Y.S.2d 668, 519 N.E.2d 614 ; People v. Francis, 82 A.D.3d 1263, 919 N.Y.S.2d 394 ; People v. Fauntleroy, 57 A.D.3d 1167, 1168, 869 N.Y.S.2d 655 ). 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 A.D.3d 1009, 931 N.Y.S.2d 346 ; 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 A.D.2d 620, 621, 524 N.Y.S.2d 508 ; Penal Law §§ 60.35[2] ; 70.25).
HALL, J.P., COHEN, LaSALLE and CONNOLLY, JJ., concur.