| People v Diggs |
| 2010 NY Slip Op 04613 [73 AD3d 1210] |
| May 25, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ronald Diggs, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Jason P.Weinstein of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins,J.), rendered September 3, 2008, convicting him of rape in the first degree, unlawfulimprisonment in the first degree, menacing in the second degree (two counts), and criminalpossession of a weapon in the third degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the law, by (1) vacating the imposition of a DNAdatabank fee, a sex offender registration fee, and a supplemental sex offender victim fee, and (2)reducing the mandatory surcharge and crime victim assistance fee from the total sum of $270 tothe total sum of $210; as so modified, the judgment is affirmed.
The defendant's contentions regarding DNA evidence adduced at trial are unpreserved forappellate review (see CPL 470.05 [2]; People v Howell, 44 AD3d 686, 687[2007]). In any event, the defendant's contentions are without merit (see People v Brown,13 NY3d 332 [2009]; People v Rawlins, 10 NY3d 136, 159 [2008], cert denied subnom. Meekins v New York, 557 US —, 129 S Ct 2856 [2009]; see generallyCrawford v Washington, 541 US 36, 59 [2004]).
As the People correctly concede, since the crimes of which the defendant was convictedwere committed before the effective date of the legislation providing for the imposition of aDNA databank fee, a sex offender registration fee, and a supplemental sex offender victim fee(see Penal Law § 60.35 [1] [a] [v]), those fees should not have been imposed(see People v Hill, 25 AD3d 724 [2006]). The People also correctly concede that theSupreme Court erred in imposing a mandatory surcharge and crime victim assistance fee in thesum of $270, since the Penal Law required a mandatory surcharge and crime victim assistancefee in the total sum of only $210 at the time the criminal acts underlying the instant convictionswere committed (see Penal Law § 60.35; People v Cruz, 25 AD3d 565[2006]). We therefore modify the judgment accordingly.
The defendant's remaining contention is without merit. Dillon, J.P., Santucci, Balkin andSgroi, JJ., concur.