People v Cancer

People v Cancer 2015 NY Slip Op 07304 Decided on October 8, 2015 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: October 8, 2015
106970

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

v

LATOYA CANCER, Appellant.

Calendar Date: September 8, 2015
Before: McCarthy, J.P., Egan Jr., Rose and Clark, JJ.

Barrett D. Mack, Albany, for appellant.

Eric T. Schneiderman, Attorney General, New York City (Nikki Kowalski of counsel), for respondent.

McCarthy, J.P.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered September 17, 2013, convicting defendant upon her guilty plea of the crime of criminal possession of a controlled substance in the fourth degree.

Following an investigation by the Attorney General's Organized Crime Task Force, defendant and 33 others were charged in a 226-count indictment with conspiracy and other crimes stemming from the distribution of cocaine in multiple counties in New York [FN1]. Defendant was also separately charged in a superior

court information with grand larceny in the third degree, and the Albany County District Attorney filed a petition alleging that she had violated probation [FN2]. The Attorney General and District Attorney negotiated a joint plea agreement to resolve all three matters, which required [*2]defendant's cooperation with the conspiracy investigation. Pursuant thereto, defendant entered a guilty plea to count 195 of the indictment, which charged her with criminal possession of a controlled substance in the fourth degree, and to attempted grand larceny in the third degree, and she admitted violating probation. As part of that agreement, defendant waived her right to appeal as to all three matters and signed a written waiver of appeal.

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. The court subsequently imposed a one-year jail term on the drug-related conviction, to be served consecutively to the one-year term imposed for violating probation. Defendant now appeals from the judgment of conviction for criminal possession of a controlled substance in the fourth degree.

On appeal, defendant argues that she did not get the benefit of the promised plea agreement with regard to her sentence, which she also argues is harsh and excessive. Given that defendant has completed her consecutive one-year jail sentences during the pendency of this appeal, these 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.

Footnotes

Footnote 1: Defendant was named in three counts of the indictment which charged her with conspiracy in the second degree (count 1) and criminal possession of a controlled substance in the third and fourth degrees (counts 194 and 195, respectively).

Footnote 2: The violation of probation matter is the subject of a separate appeal (People v Cancer, ___ AD3d ___ [appeal No. 106293, decided herewith]).