People v. Valdelamar

— Appeal by the defendant, as limited by his motion, from four sentences of the Supreme [290] Court, Queens County (Rubin, J.), all imposed February 9, 1983, upon (1) his conviction of robbery in the first degree, upon his plea of guilty, under indictment No. 1058/82; (2) his conviction of robbery in the first degree, upon his plea of guilty, under indictment No. 1136/82; (3) his conviction of grand larceny in the third degree, upon his plea of guilty, under indictment No. 1293/82; and (4) his conviction of attempted sodomy in the first degree, upon his plea of guilty, under indictment No. 3131/82, the sentences being three concurrent indeterminate terms of imprisonment of 3 Vs to 10 years imposed under indictments Nos. 1058/82, 1136/82 and 3131/82, a concurrent indeterminate term of imprisonment of lVs to 4 years imposed under indictment No. 1293/82, and mandatory penalty assessments of $75 imposed under indictments Nos. 1293/82 and 3131/82. Sentences imposed under indictments Nos. 1058/82 and 1136/82 affirmed. No opinion. Sentences imposed under indictments Nos. 1293/82 and 3131/82 modified, on the law, by vacating the mandatory penalty assessments imposed. As so modified, sentences affirmed. Because the crimes for which the defendant was convicted under indictments Nos. 1293/82 and 3131/82 were committed prior to the effective date of the mandatory penalty assessment statute (see, Penal Law § 60.35, as added by L 1982, ch 55, §§ 81, 96), the imposition of such assessments constituted an unconstitutional ex post facto penalty (see, People v Clarke, 111 AD2d 11; People v Santos, 105 AD2d 1135, 1136; People v Dodson, 96 AD2d 1116, 1118). Mollen, P. J., Mangano, Thompson and Bracken, JJ., concur.