Opinion
October 7, 1992
Appeal from the Erie County Court, LaMendola, J.
Present — Callahan, J.P., Boomer, Pine, Fallon and Doerr, JJ.
Appeal from adjudication insofar as it imposes sentence of incarceration unanimously dismissed as moot and otherwise adjudication affirmed. Memorandum: On appeal from an adjudication convicting him, upon a plea of guilty, of petit larceny, defendant argues that his waiver of his right to appeal was invalid. We agree that defendant's waiver of his right to appeal was not knowingly, voluntarily and intelligently made (see, People v Seaberg, 74 N.Y.2d 1, 11). Defendant's argument on appeal that his sentence of incarceration was harsh and excessive is moot, however, because that sentence has now been served. We have examined defendant's remaining argument on appeal and find it to be without merit.