—[*1]Judgment, Supreme Court, Bronx County (Efrain Alvarado, J., at plea; John P. Collins, J., at sentence), rendered August 12, 2004, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 4½ to 9 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

As the People concede, since the crime was committed prior to the effective date of the legislation (Penal Law § 60.35 [1] [a] [v] [former (1) (e)]) providing for the imposition of a DNA databank fee, that fee should not have been imposed. Since this issue involves the substantive legality of the sentence, it survives defendant's waiver of his right to appeal. Concur—Mazzarelli, J.P., Friedman, Marlow and Nardelli, JJ.