People v Rodriguez

2006 NY Slip Op 04368

Decided on June 6, 2006

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 6, 2006
Andrias, J.P., Friedman, Sullivan, Nardelli, Malone, JJ.
8698-8698AInd. 4880/04SCI 922/05






Robert S. Dean, Center for Appellate Litigation, New York
(Carl S. Kaplan of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Paula-
Rose Stark of counsel), for respondent.

Judgments, Supreme Court, New York County (Budd G. Goodman, J.), rendered April 8, 2005, convicting defendant, upon his pleas of guilty, of rape in the first degree, robbery in the second degree, rape in the second degree (two counts) and endangering the welfare of a child, and sentencing him, as a second violent felony offender, to an aggregate term of 20 years, unanimously modified, on the law, to the extent of vacating the supplemental sex offender fee, and otherwise affirmed.

Defendant knowingly and intelligently waived his right to appeal, and this waiver encompassed his excessive sentence claim (see People v Lopez, 6 NY3d 248 [2006]). In any event, were we to find that defendant did not validly waive his right to appeal, we would perceive no basis for reducing the sentence.

As the People concede, since the crime was committed prior to the effective date of the legislation (Penal Law
§ 60.35[1][b]) providing for the imposition of a supplemental sex offender fee, that fee should not have been imposed. Since this issue involves the substantive legality of the sentence, it survives defendant's waiver of his right to appeal.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 6, 2006

CLERK