Opinion
No. 1577.
October 2, 2007.
Judgment, Supreme Court, Bronx County (Nicholas J. Iacovetta, J., at plea, John P. Collins, J., at sentence), rendered December 2, 2004, convicting defendant of criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, unanimously modified, on the law, to vacate the DNA databank fee, and otherwise affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Gayle Pollack of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Vincenzo S. Lippiello of counsel), for respondent.
Before: Lippman, P.J., Tom, Nardelli, Gonzalez and Kavanagh, JJ.
Defendant's claim that he was entitled to a hearing on the issue of whether he violated the terms of his plea agreement is unpreserved since he never requested a hearing or moved to withdraw his plea ( see e.g. People v Delgado, 14 AD3d 449, lv denied 4 NY3d 853), and we decline to review it in the interest of justice. Were we to review this claim, we would find that after a sufficient inquiry, the sentencing court properly determined that defendant had violated his plea agreement. There was no factual dispute requiring a hearing ( see People v Valencia, 3 NY3d 714), in view of the undisputed fact that, contrary to the plea agreement, defendant failed to appear for sentencing and was returned involuntarily on a bench warrant ( see e.g. People v Griffin, 33 AD3d 561, lv denied 8 NY3d 881). We also conclude that defendant received effective assistance in connection with his plea and sentencing under the state and federal standards ( see People v Benevento, 91 NY2d 708, 713-714; People v Ford, 86 NY2d 397, 404; see also Strickland v Washington, 466 US 668).
As the People concede, since the crime was committed prior to the effective date of the legislation (Penal Law § 60.35 [a] [v] [former (1) (e)]), providing for the imposition of a DNA databank fee, that fee should not have been imposed.