People v. Wade

Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered April 25, 2012, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. Ordered that the judgment is affirmed. Under indictment No. 102/11, the defendant entered a plea of guilty to attempted criminal possession of a weapon in the second degree, in connection with a criminal offense committed on August 20, 2011, which is the subject of this appeal. Under indictment No. 127/11, the defendant entered a plea of guilty to criminal sale of a controlled substance in the third degree, in connection with a criminal offense committed on August 9, 2011. He was sentenced under both indictments pursuant to a plea arrangement on the same date, April 25, 2012, at which time the County Court imposed a separate $50 DNA data bank fee for each conviction pursuant to Penal Law § 60.35. The defendant’s contention that Penal Law § 60.35 prohibits the imposition of two DNA data bank fees at the same sentencing proceeding is not preserved for appellate review (see People v Ruz, 70 NY2d 942, 943 [1988]; People v Francis, 82 AD3d 1263 [2011]; People v Fauntleroy, 57 AD3d 1167, 1168 [2008]). In any event, under the circumstances here, the County Court properly imposed a DNA data bank fee for each of the defendant’s convictions. The crimes underlying the convictions were both designated offenses as defined by Executive Law § 995 (7) for the purpose of imposing the DNA data bank fee (see People v Cooper, 88 AD3d 1009 [2011]; Penal Law § 60.35 [1] [a] [v]). Moreover, Penal Law § 60.35 does not prohibit the imposition of multiple surcharges where, as here, the two convictions were for separate and distinct crimes that took place days apart *770 from one another which, under Penal Law § 70.25, could have properly resulted in consecutive sentences (see People v Higgins, 137 AD2d 620, 621 [1988]; Penal Law §§ 60.35 [2]; 70.25). Hall, J.P., Cohen, LaSalle and Connolly, JJ., concur.