People v Fusco

People v Fusco 2013 NY Slip Op 02427 Decided on April 11, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 11, 2013
104503

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

JENNIE FUSCO, Appellant.

Calendar Date: February 14, 2013
Before: Peters, P.J., Spain, Garry and Egan Jr., JJ.


R. Graham McNamara, Glenville, for appellant.
Kevin C. Kortright, District Attorney, Fort Edward
(Katherine G. Henley of counsel), for respondent.

MEMORANDUM AND ORDER


Garry, J.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered February 18, 2011, convicting defendant upon her plea of guilty of the crime of grand larceny in the third degree.

Defendant pleaded guilty to one count of grand larceny in the third degree in satisfaction of various charges against her, and waived her right to appeal. County Court sentenced her, as a second felony offender, to a prison term of 1½ to 3 years, to run concurrently with a sentence she was already serving (see generally People v Fusco, 91 AD3d 985 [2012]; People v Fusco, 91 AD3d 984 [2012]). Defendant appeals from this judgment of conviction.

Thereafter, County Court learned that the sentence imposed was illegal, and that it had been obliged to impose an indeterminate prison sentence of at least 2 to 4 years (see Penal Law §§ 70.06 [3] [d]; [4]; 155.35). Defendant was accordingly summoned and, with her consent, County Court amended the judgment of conviction by reducing her conviction to the class E felony of attempted grand larceny in the third degree (see Penal Law §§ 70.06 [3] [e]; 110.05 [6]). No notice of appeal from the amended judgment of conviction appears in the record. The amended judgment went beyond resentencing defendant, altering the very crime for which she was convicted (compare People v Brown, 47 AD2d 567, 567 [1975]). Accordingly, the original judgment was vacated, and the sentence therefrom superseded; lacking notice of an appeal from [*2]the amended judgment, this appeal from the original judgment must be dismissed (see CPL 450.30; People v Gannon, 2 AD3d 1214, 1214 [2003]; People v Proctor, 76 AD2d 756, 756 [1980]).

Peters, P.J., Spain and Egan Jr., JJ., concur.

ORDERED that the appeal is dismissed.