| People v Postula |
| 2008 NY Slip Op 03866 [50 AD3d 1581] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DuanePostula, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), renderedOctober 5, 2005. The judgment revoked defendant's sentence of probation and imposed asentence of imprisonment.
It is hereby ordered that said appeal is unanimously dismissed.
Memorandum: Defendant appeals from an October 2005 judgment revoking the sentence ofprobation imposed upon his plea of guilty of attempted sexual abuse in the first degree (PenalLaw §§ 110.00, 130.65 [2]) and sentencing him to a definite term of incarceration.Although defendant contends that he received ineffective assistance of counsel and that he didnot validly waive his right to appeal in connection with the underlying August 2003 judgment ofconviction, the record on appeal contains only a notice of appeal from the October 2005judgment revoking the sentence of probation, and there otherwise is no indication in the recordthat defendant took an appeal from the August 2003 judgment. Defendant's contentions withrespect to the August 2003 judgment therefore are not properly before us, and only defendant'sremaining challenge to the severity of the sentence imposed in the October 2005 judgment isproperly before us (see People vParente, 4 AD3d 793 [2004]; People v Holmes, 226 AD2d 1122 [1996], lvdenied 88 NY2d 966 [1996]). Contrary to the People's contention, that contention survivesdefendant's waiver of the right to appeal (see People v Gurrola, 43 AD3d 1230 [2007]; People v Venable, 16 AD3d 771[2005]; People v Cheatham, 278 AD2d 889 [2000], lv denied 96 NY2d 798[2001]; People v Rodriguez, 259 AD2d 1040 [1999]). Nevertheless, defendant'scontention is moot because defendant has completed serving that sentence (see Parente, 4AD3d at 794). Present—Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.