—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Carol A. Zeldin of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Joshua F. Magri of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Caesar D. Cirigliano, J.), rendered June 29, 2004, convicting defendant, upon his plea of guilty, of burglary in the first degree, and sentencing him to a term of five years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

We perceive no basis for reducing the sentence. The court properly exercised its discretion in directing that defendant's sentence be served consecutively to a sentence imposed by another court for violation of probation.

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. Concur—Tom, J.P., Friedman, Nardelli, Catterson and Malone, JJ.