Opinion
108139 108130
01-11-2018
The PEOPLE of the State of New York, Respondent, v. Derrick BAXTER, Appellant.
Brian M. Quinn, Albany, for appellant. Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Brian M. Quinn, Albany, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Garry, P.J.Appeals (1) from a judgment of the County Court of Saratoga County (Sypniewski, J.), rendered September 14, 2015, convicting defendant upon his plea of guilty of the crimes of petit larceny and possession of burglar's tools, and (2) by permission, from an order of said court, entered December 21, 2015, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing.
In January 2015, defendant allegedly entered a department store in Saratoga County—purportedly in violation of a no-trespass agreement—and, after utilizing a small pry tool to remove certain security devices, stole two pairs of jeans. Defendant was thereafter indicted and charged with burglary in the third degree, petit larceny and possession of burglar's tools. In full satisfaction of these charges, defendant waived his right to appeal and pleaded guilty to petit larceny and possession of burglar's tools. At sentencing, defendant argued that the promised term of incarceration—two one-year jail terms to be served consecutively—was illegal and urged County Court to impose concurrent sentences. County Court rejected this argument and imposed the contemplated sentence. Defendant's subsequent CPL 440.20 motion to set aside the sentence was unsuccessful. Defendant now appeals from the judgment of conviction and, by permission, from the order denying his motion to set aside his sentence.
Defendant's challenge to the legality of the sentence imposed survives his uncontested waiver of the right to appeal (see People v. Mangarillo, 152 A.D.3d 1061, 1061–1062, 59 N.Y.S.3d 572 [2017] ; People v. Blair, 140 A.D.3d 1478, 1479, 35 N.Y.S.3d 508 [2016], lv denied 28 N.Y.3d 927, 40 N.Y.S.3d 355, 63 N.E.3d 75 [2016] ). However, this Court has been advised that, during the pendency of this appeal, defendant completed his term of incarceration and was released from jail. Accordingly, defendant's claim that the subject sentence is illegal is moot (see People v. Parker, 156 A.D.3d 1059, 1059, 65 N.Y.S.3d 488, 2017 N.Y. Slip Op. 08754, *1 [2017]; People v. Dale, 142 A.D.3d 1287, 1290, 38 N.Y.S.3d 333 [2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ; People v. Jones, 139 A.D.3d 1237, 1238, 30 N.Y.S.3d 579 [2016], lv denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ; People v. De Leo, 214 A.D.2d 762, 762–763, 624 N.Y.S.2d 982 [1995] ), and we discern no basis upon which to invoke the exception to the mootness doctrine (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). The judgment is therefore affirmed and the appeal from the order denying defendant's motion to vacate must be dismissed.
ORDERED that the judgment is affirmed.
ORDERED that the appeal from the order is dismissed, as moot.
Lynch, Clark, Aarons and Pritzker, JJ., concur.