Judgment, Supreme Court, Bronx County (Michael Sonberg, J. at plea; Robert Torres, J. at sentence), rendered March 10, 2004, convicting defendant of two counts of attempted robbery in the first degree, and sentencing him, as a second violent felony offender, to concurrent terms of 7 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

Defendant's claim that he was entitled to a hearing on the issue of whether he violated the terms of his plea agreement is unpreserved since he never requested a hearing or moved to withdraw his plea (see e.g. People v Battle, 287 AD2d 361 [2001], lv denied 97 NY2d 751 [2002]), and we decline to review it in
the interest of justice. Were we to review this claim, we would find that after a sufficient inquiry, the sentencing court properly determined that defendant violated his plea agreement through his poor performance at the program. The court relied upon uncontested facts, and there was no factual dispute requiring a hearing (see People v Valencia, 3 NY3d 714 [2004]).

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.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 6, 2006

CLERK