
    The People of the State of New York, Respondent, v Jose Torres, Appellant.
    [793 NYS2d 762]—
   Judgment, Supreme Court, Bronx County (Lawrence H. Bernstein, J., at plea; John G. Ingram, J, at sentence), rendered December 16, 2003, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

The court properly exercised its discretion in imposing the prison sentence provided for in defendant’s plea agreement since, despite two separate opportunities, defendant failed to complete a drug program as required by the agreement (see People v Avery, 85 NY2d 503, 507-508 [1995]). To the extent that defendant is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice. Were we to review such claim, we would reject it because defendant was sentenced in precise accordance with his plea agreement, based upon his undisputed failure to comply with its conditions.

As the People concede, since the crime was committed before the effective date of the legislation (Penal Law § 60.35 [1] [e]) providing for imposition of a DNA databank fee, that fee should not have been imposed. Concur—Tom, J.P., Saxe, Friedman, Marlow and Catterson, JJ.  