| People v Ramos |
| 2009 NY Slip Op 02042 [60 AD3d 1317] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Juan Ramos,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered October17, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal possession of acontrolled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by vacating the DNA databank fee and asmodified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]). We reject the contention of defendant that the police did not have an articulable reason forapproaching the parked vehicle in which he was a passenger in order to request information(see generally People v Hollman, 79 NY2d 181, 191 [1992]; People v De Bour,40 NY2d 210, 223 [1976]). That vehicle was one of two vehicles parked in the parking lot of aplayground that had been the subject of neighborhood complaints concerning individuals sellingdrugs. We conclude that the totality of the information known to the police prior to entering theparking lot and their observations upon doing so provided an articulable reason for approachingthe vehicle in question to request information with respect to the identity of the occupants andtheir purpose for being in the area (see People v Hollman, 79 NY2d 181, 191 [1992]; People v Wright, 8 AD3d 304,306 [2004]).
Defendant failed to preserve for our review his contention that the questioning conducted bythe officer following his initial approach of the vehicle exceeded the scope of a request forinformation (see generally People vArguinzoni, 48 AD3d 1239, 1241 [2008], lv denied 10 NY3d 859 [2008]; People v Evans, 34 AD3d 1301,1302 [2006], lv denied 8 NY3d 845 [2007]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]). Defendant also failed to preserve for our review his contention that County Court erredin imposing the $50 DNA databank fee authorized by Penal Law § 60.35 (1) (a) (v).Nevertheless, we exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]; People v King, 57 AD3d 1495 [2008]). As the People correctlyconcede, Penal Law § 60.35 (1) (a) requires that a DNA databank fee be imposed upon[*2]an individual "convicted of a designated offense as definedby [Executive Law § 995 (7)]." The amended version of Executive Law § 995 (7)that defines " '[d]esignated offender' " as, inter alia, an individual who had been convicted of andsentenced for "a felony defined in the [P]enal [L]aw" became effective approximately two weeksafter defendant committed the crime in question here, and we therefore modify the judgment byvacating the DNA databank fee. Present—Scudder, P.J., Hurlbutt, Peradotto and Gorski,JJ.