| People v Jackson |
| 2007 NY Slip Op 07309 [44 AD3d 301] |
| October 2, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Donald Jackson, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Vincenzo S. Lippiello of counsel), forrespondent.
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 controlledsubstance in or near school grounds, and sentencing him, as a second felony offender, to a termof 4½ to 9 years, unanimously modified, on the law, to vacate the DNA databank fee, andotherwise affirmed.
Defendant's claim that he was entitled to a hearing on the issue of whether he violated theterms of his plea agreement is unpreserved since he never requested a hearing or moved towithdraw his plea (see e.g. People v Delgado, 14 AD3d 449 [2005], lv denied 4 NY3d853 [2005]), 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 thatdefendant had violated his plea agreement. There was no factual dispute requiring a hearing (see People v Valencia, 3 NY3d714 [2004]), in view of the undisputed fact that, contrary to the plea agreement, defendantfailed to appear for sentencing and was returned involuntarily on a bench warrant (seee.g. People v Griffin, 33 AD3d561 [2006], lv denied 8 NY3d 881 [2007]). We also conclude that defendantreceived effective assistance in connection with his plea and sentencing under the state andfederal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; People vFord, 86 NY2d 397, 404 [1995]; see also Strickland v Washington, 466 US 668[1984]).
As the People concede, since the crime was committed prior to the effective date of the [*2]legislation (Penal Law § 60.35 [1] [a] [v] [former (1) (e)]),providing for the imposition of a DNA databank fee, that fee should not have been imposed.Concur—Lippman, P.J., Tom, Nardelli, Gonzalez and Kavanagh, JJ.