People v. Cancer, 132 A.D.3d 1019

132 A.D.3d 1019

N.Y. App. Div.

2015

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v LATOYA CANCER, Appellant.

Supreme Court, Appellate Division, Third Department, New York

October 22, 2015

132 AD3d 1021 | 17 NYS3d 325

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, 132 AD3d 1021 [2015] [decided herewith]). A joint plea agreement was negotiated to resolve all three matters, which required defendant’s 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.).¹ 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. Ordered that the judgment is affirmed.

Notes

* While counsel was obligated to file a notice of appeal upon defendant’s timely request, we granted defendant’s pro se motion pursuant to CPL 460.30 for an extension of time to take this appeal and accepted her untimely notice of appeal. Consequently, counsel’s omission did not cause defendant to lose the right to appeal (see ). Further, the proper recourse where counsel fails to file a notice of appeal is an application for a writ of error coram nobis (see ; , lv denied ).