People v. Cancer , 17 N.Y.S.3d 786 ( 2015 )

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: October 8, 2015 106293 ________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MEMORANDUM AND ORDER LATOYA CANCER, Appellant. ________________________________ Calendar Date: September 8, 2015 Before: McCarthy, J.P., Egan Jr., Rose and Clark, JJ. __________ Barrett D. Mack, Albany, for appellant. P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent. __________ McCarthy, J.P. Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered September 12, 2013, (1) convicting defendant upon her plea of guilty of the crime of attempted grand larceny in the third degree, and (2) which revoked defendant's probation and imposed a sentence of imprisonment. Defendant was charged in a superior court information with attempted grand larceny in the third degree, and a petition was filed alleging that she had violated probation. Defendant was also charged along with others in a separate indictment with conspiracy and other crimes stemming from the distribution of cocaine (People v Cancer, ___ AD3d ___ [appeal No. 106970, decided herewith]). A joint plea agreement was negotiated to resolve all three matters, which required defendant's -2- 106293 cooperation. Pursuant thereto, defendant entered a guilty plea to attempted grand larceny in the third degree and admitted violating probation. She also pleaded guilty to a count of the indictment that charged her with criminal possession of a controlled substance in the fourth degree (id.). As part of that agreement, defendant waived her right to appeal as to all three matters and signed a written waiver of appeal in open court. At sentencing, County Court revoked defendant's probation and imposed a one-year jail term with credit for time served on the violation petition. With respect to the attempted grand larceny conviction, the court granted defendant a conditional discharge and ordered her to pay certain restitution. At the subsequent sentencing on the drug conviction, the court imposed a one-year jail term thereon, to be served consecutively to the jail term imposed on the violation of probation (id.). Defendant now appeals from the judgment of conviction for attempted grand larceny in the third degree and the violation of probation. On appeal, defendant's only argument is that her one-year jail sentence imposed on September 12, 2013 is harsh and excessive, and that this claim is not precluded because her waiver of appeal was invalid. Given that defendant has necessarily completed that one-year jail sentence during the pendency of this appeal, any claims related to sentencing are moot (see People v Rodwell, 122 AD3d 1065, 1068 [2014], lv denied 25 NY3d 1170 [2015]; People v Pozzi, 117 AD3d 1325, 1325 [2014]; People v Trombley, 111 AD3d 984, 984-985 [2013]). Egan Jr., Rose and Clark, JJ., concur. -3- 106293 ORDERED that the judgment is affirmed. ENTER: Robert D. Mayberger Clerk of the Court