People v. Johnson , 869 N.Y.2d 84 ( 2008 )

With regard to the manslaughter and attempted murder conviction under indictment No. 2227/02, as the People concede, since defendant committed these crimes prior to the effective dates of amendments to Penal Law § 60.35 providing for the imposition of DNA databank fees and increasing the mandatory surcharge and crime victim assistance fees defendant’s sentence is unlawful to the extent indicated.

With regard to the rape conviction under indictment No. 4811/ 03, as the People concede, defendant was improperly adjudicated a second violent felony offender because the adjudication was based on a predicate conviction that did not meet the sequentiality requirement of Penal Law § 70.04 (1) (b) (ii). However, under the circumstances, the People are entitled to an opportunity to establish, on the basis of a different conviction, that defendant is nonetheless a second violent felony offender (see People v Sailor, 65 NY2d 224 [1985], cert denied 474 US 982 [1985]). Since there is to be a resentencing on this indictment in any case, the sentencing court should take note that because the crime was committed on February 20, 1996, defendant is not subject to any period of postrelease supervision, and is subject to the fee and surcharge schedule applicable as of that date. Concur—Andrias, J.P., Nardelli, Sweeny, DeGrasse and Freedman, JJ.