People v Burks

2018 NY Slip Op 05366 [163 AD3d 1268]

July 19, 2018

Appellate Division, Third Department

As corrected through Wednesday, August 29, 2018

[*1]

The People of the State of New York,Respondent, v Gerard Burks, Also Known as YB, Appellant.

Del Atwell, East Hampton, for appellant.

P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.

Garry, P.J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered October 1, 2014, which revoked defendant's probation and imposed a sentence ofimprisonment.

In 2012, defendant pleaded guilty to attempted criminal sale of a controlled substance in thethird degree, waived his right to appeal and was sentenced to five years of probation. In March2014, defendant admitted to violating the terms of his probation and, again, waived his right toappeal. The initial agreement set forth that defendant would be resentenced to a prison term of11/2 years followed by 11/2 years of postrelease supervision, withthe potential that defendant participate in a drug treatment program. Subsequently, however,County Court agreed to permit defendant to reenter a drug court program and, upon successfulcompletion, to resentence him to a period of probation; otherwise, a term of imprisonment wouldbe imposed if he did not successfully complete the drug treatment program. Prior to resentencing,the court was notified that defendant, among other things, had been rearrested in August 2014.Ultimately, the court, in accordance with an agreement with the parties, revoked defendant'sprobation and imposed a prison term of 21/2 years followed by two years ofpostrelease supervision. Defendant appeals.

We affirm. To the extent that defendant asserts that County Court improperly imposed anenhanced period of incarceration and that such prison term was harsh and excessive, we note thatdefendant has completed serving that part of his sentence. As such, the issues as to the validityand severity of defendant's sentence are moot (see People v McLaine, 64 NY2d 934, 934[1985]; People v Evans, 159 AD3d1226, 1227 [2018], lv denied 31 NY3d 1081 [2018]; People v Trombley, 111 AD3d984, 985 [2013]). Defendant also contends that he was not afforded the effective assistanceof counsel due to the purported failure by counsel to negotiate an alternative sentence in the eventthat defendant failed to fulfill the conditions of the drug court program. A review of the recordestablishes, however, that defendant, in connection with his plea of guilty to violating hisprobation, waived his right to appeal. To that end, County Court distinguished the right to appealas separate and apart from the rights automatically forfeited by defendant's guilty plea, anddefendant affirmed his understanding of the waiver (see People v Bailey, 157 AD3d 1133, 1134 [2018], lvdenied 31 NY3d 981 [2018]).^[FN*] Given that defendant's challenge to theeffective assistance of counsel does not relate to the voluntariness of his guilty plea of violatingprobation, it is precluded by the valid waiver of the right to appeal (see People v Bellamy, 85 AD3d1395, 1396 [2011]).

McCarthy, Clark, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.

Footnote *:Although the record reflects thatdefendant executed a written appeal waiver, that document does not appear in the record.