People v Rodriguez, 2011 NY Slip Op 05877 [86 AD3d 441]

July 7, 2011

Appellate Division, First Department

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Steven Banks, The Legal Aid Society, New York (Laura Boyd of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Jenetha G. Philbert of counsel), for respondent.

Order, Supreme Court, Bronx County (John P. Collins, J.), entered on or about March 22, 2010, which denied defendant’s CPL 440.46 motion for resentencing, unanimously affirmed.

The court properly exercised its discretion in determining that substantial justice dictated denial of defendant’s motion, given defendant’s criminal history, disciplinary record while incarcerated and failure to successfully complete drug treatment for drug abuse ( see People v Gonzalez , 29 AD3d 400 [2006], lv denied 7 NY3d 867 [2006]).

Defendant also claims, and the People agree, that a DNA databank fee should not have been imposed at the time of the underlying conviction because the crime was committed prior to the effective date of the legislation providing for the imposition of the fee. However, defendant neither appealed from the underlying judgment nor moved to set aside the sentence under CPL 440.20. Defendant has only appealed from an order denying resentencing under the Drug Law Reform Act (L 2009, ch 56). Defendant’s resentencing motion raised the fee issue, but nothing in the act provides for relief relating to an underlying judgment, except with respect to the prison term. Accordingly, the fee issue is not properly before us ( cf . People v Marchena , 60 AD3d 508 , 509 [2009]). Concur—Mazzarelli, J.P., Catterson, DeGrasse, Abdus-Salaam and Rom�n, JJ..