| People v Baxter |
| 2018 NY Slip Op 00198 [157 AD3d 1061] |
| January 11, 2018 |
| Appellate Division, Third Department |
[*1]
| 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), forrespondent.
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 ofthe crimes of petit larceny and possession of burglar's tools, and (2) by permission, from an orderof said court, entered December 21, 2015, which denied defendant's motion pursuant to CPL440.20 to set aside the sentence, without a hearing.
In January 2015, defendant allegedly entered a department store in SaratogaCounty—purportedly in violation of a no-trespass agreement—and, after utilizing asmall pry tool to remove certain security devices, stole two pairs of jeans. Defendant wasthereafter indicted and charged with burglary in the third degree, petit larceny and possession ofburglar's tools. In full satisfaction of these charges, defendant waived his right to appeal andpleaded guilty to petit larceny and possession of burglar's tools. At sentencing, defendant arguedthat the promised term of incarceration—two one-year jail terms to be servedconsecutively—was illegal and urged County Court to impose concurrent sentences.County Court rejected this argument and imposed the contemplated sentence. Defendant'ssubsequent CPL 440.20 motion to set aside the sentence was unsuccessful. Defendant nowappeals from the judgment of conviction and, by permission, from the order denying his motionto set aside his sentence.
Defendant's challenge to the legality of the sentence imposed survives his uncontested [*2]waiver of the right to appeal (see People v Mangarillo, 152 AD3d 1061, 1061-1062 [2017]; People v Blair, 140 AD3d 1478,1479 [2016], lv denied 28 NY3d 927 [2016]). However, this Court has been advised that,during the pendency of this appeal, defendant completed his term of incarceration and wasreleased from jail. Accordingly, defendant's claim that the subject sentence is illegal is moot(see People v Parker, 156 AD3d 1059, 1060 [2017]; People v Dale,142 AD3d 1287, 1290 [2016], lv denied 28 NY3d 1144 [2017]; People v Jones, 139 AD3d 1237,1238 [2016], lv denied 28 NY3d 932 [2016]; People v De Leo, 214 AD2d 762,762-763 [1995]), and we discern no basis upon which to invoke the exception to the mootnessdoctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]). Thejudgment is therefore affirmed and the appeal from the order denying defendant's motion tovacate must be dismissed.
Lynch, Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed.Ordered that the appeal from the order is dismissed, as moot.