        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1299
KA 14-01072
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

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.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered October 15, 2013. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     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 NY3d 925, 927-928;
People v Diaz, 142 AD3d 1332, 1333). 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
                                 -2-                          1299
                                                         KA 14-01072

either that the court misspoke or that there is a transcription error
(see People v Kaetzel, 117 AD3d 1187, 1190, lv denied 24 NY3d 962).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
