Opinion
6415.
June 23, 2005.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered April 1, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Richard Sullivan of counsel), for respondent.
Before: Mazzarelli, J.P., Friedman, Nardelli and Williams, JJ.
The court properly exercised its discretion in precluding defendant from calling witnesses to corroborate his own testimony as to his economic status and his reason for being in the neighborhood where the sale occurred, since neither matter was a material issue at trial. The court's ruling had no adverse impact on defendant's right to present a defense ( see Crane v. Kentucky, 476 US 683, 689-690).
As the People concede, since the crime was committed prior to the effective date of the legislation (Penal Law § 60.35 [a] [v] [former (1) (e)]), that fee should not have been imposed.