Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Samuel DIPALMA, Defendant–Appellant. (Appeal No. 2.).
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, DeJOSEPH, AND SCUDDER, JJ.
MEMORANDUM:In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of driving while intoxicated (Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i][A] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ). The People correctly concede that the waiver of the right to appeal his conviction did not encompass defendant's contention in appeal No. 2 that the period of postrelease supervision is unduly harsh and severe and thus does not foreclose our review of that contention (see People v. Maracle, 19 N.Y.3d 925, 927–928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ; People v. Diaz, 142 A.D.3d 1332, 1333, 38 N.Y.S.3d 460 ). We nevertheless reject that contention.
Contrary to defendant's contention in appeal No. 1, Supreme Court did not impose a fee of $350, rather than the proper fee of $50, for the DNA databank fee (see Penal Law § 60.35[1][a][v] ). Although the sentencing transcript reflects the imposition of a DNA databank fee of $350, the transcript further reflects that the court correctly stated the total amount due from defendant for fees and surcharges, which establishes that the court properly imposed a fee of $50. Moreover, the certificate of conviction correctly states that $50 was assessed for the DNA databank fee. We therefore conclude that no corrective action is necessary inasmuch as the record establishes either that the court misspoke or that there is a transcription error (see People v. Kaetzel, 117 A.D.3d 1187, 1190, 985 N.Y.S.2d 734, lv. denied 24 N.Y.3d 962, 996 N.Y.S.2d 221, 20 N.E.3d 1001 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.