Opinion
No. 9798.
December 12, 2006.
Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered February 2, 2004, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of 12 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Jacob Kaplan of counsel), for respondent.
Before: Tom, J.P., Andrias, Marlow, Nardelli and McGuire, JJ.
The court's main and supplemental charges to the jury, viewed as a whole, conveyed the correct legal principles regarding the element of intent to use a weapon unlawfully, as applicable to the facts ( see People v Drake, 7 NY3d 28, 33-34).
As the People concede, since the crime was committed before the effective date of the legislation (Penal Law § 60.35 [a] [v] [former (1) (e)]), providing for the imposition of a DNA databank fee, that fee should not have been imposed.
We find no basis to disturb the sentence.