| People v Cooper |
| 2011 NY Slip Op 07649 [88 AD3d 1009] |
| October 25, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Clarence Cooper, Appellant. |
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William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.),rendered March 10, 2009, convicting him of promoting prison contraband in the first degree,upon his plea of guilty, and imposing sentence. The appeal brings up for review the imposition ofa DNA databank fee at the time of sentencing.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the County Court did not err in imposing a $50 DNAdatabank fee at the time of sentencing. Penal Law § 60.35 provides, in pertinent part:
"1. (a) . . . whenever proceedings in an administrative tribunal or a court of thisstate result in a conviction for a felony, a misdemeanor, or a violation . . . thereshall be levied at sentencing a . . . DNA databank fee . . . inaccordance with the following schedule . . .
"(v) a person convicted of a designated offense as defined by subdivision seven of sectionnine hundred ninety-five of the executive law shall, in addition to a mandatory surcharge andcrime victim assistance fee, pay a DNA databank fee of fifty dollars.""Section 60.35 was originally enacted as part of a massive revenue-raising bill meant to 'avert theloss of an estimated $100 million in State tax revenues' " (People v Guerrero, 12 NY3d 45, 49 [2009], quoting LegislativeMem in Support, Bill Jacket, L 1982, ch 55, at 6).
Here, the defendant was convicted of promoting prison contraband in the first degree, a"designated offense" as defined by Executive Law § 995 (7). Therefore, the County Courtproperly imposed a $50 DNA databank fee on the defendant at the time of sentencing. Thedefendant argues that the County Court should not have imposed the DNA databank fee becausehe had previously [*2]provided a DNA sample pursuant to a priorfelony conviction, which occurred after the enactment of the legislation establishing such fee(see Penal Law § 60.35, as amended by L 2003, ch 62, part F, § 1).However, pursuant to the plain meaning of Penal Law § 60.35 (1) (a) (v), the imposition ofa $50 DNA databank fee is triggered upon a conviction of a "designated offense" as defined byExecutive Law § 995 (7). There is nothing in the language of Penal Law § 60.35 (1)(a) (v) that precludes the imposition of subsequent DNA databank fees upon a defendant who haspreviously provided a DNA sample in connection with a felony conviction that occurred after theenactment of Penal Law § 60.35. Moreover, contrary to the defendant's contention, ourdecision in People v Nelson (77AD3d 973 [2010]) does not stand for the proposition that a DNA databank fee may not beimposed under the circumstances presented here.
Furthermore, to the extent that the defendant contends that his plea of guilty was notknowing or voluntary, his claim is unpreserved for appellate review because he failed to move towithdraw his plea (see CPL 470.05 [2]; People v Toxey, 86 NY2d 725 [1995]; People v Brown, 78 AD3d 723,724 [2010]; People v Elcine, 43AD3d 1176, 1177 [2007]). The narrow exception to the preservation rule is inapplicable inthis case, since the defendant's plea recitation of the facts underlying the crime of promotingprison contraband in the first degree did not cast significant doubt on his guilt or otherwise callinto question the voluntariness of the plea (see People v Lopez, 71 NY2d 662, 666[1988]).
While a plea of guilty does not waive jurisdictional defects in the indictment (see Peoplev Iannone, 45 NY2d 589, 600 [1978]), the indictment here was not jurisdictionally defective.The indictment alleged every element of the crime of promoting prison contraband in the firstdegree, including the defendant's possession of dangerous contraband. Contrary to thedefendant's contention, the exact quantity of the marihuana he allegedly possessed is not anelement of the offense and, thus, the failure of the indictment to allege the quantity of marihuanadid not constitute a jurisdictional defect (see People v Trank, 58 AD3d 1076, 1077[2009]; see People v Finley, 10NY3d 647, 658 [2008]; People vReeves, 78 AD3d 1332 [2010]). Since the alleged defect in the indictment is notjurisdictional, any challenge to the sufficiency of the factual allegations in the indictment iswaived by the defendant's plea of guilty (see People v Iannone, 45 NY2d at 600;People v Trank, 58 AD3d at 1077).
Furthermore, since the defendant pleaded guilty with the understanding that he would receivethe sentence which was thereafter actually imposed, he has no basis to now complain that hissentence was excessive (see People vMays, 84 AD3d 1269, 1270 [2011], lv denied 17 NY3d 819 [2011]; People vKazepis, 101 AD2d 816 [1984]).
The defendant's remaining contention is without merit. Angiolillo, J.P., Dickerson, Hall andRoman, JJ., concur.