| People v Vivona |
| 2021 NY Slip Op 06392 [199 AD3d 1165] |
| November 18, 2021 |
| Appellate Division, Third Department |
[*1](November 18, 2021)
| The People of the State of New York,Respondent, v Vito F. Vivona, Appellant. |
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant,and appellant pro se.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered March 19, 2018, convicting defendant upon his plea of guilty of the crime of grandlarceny in the third degree.
In December 2017, defendant pleaded guilty to grand larceny in the third degree with theunderstanding that he would be sentenced to six months in jail followed by five years ofprobation. The plea agreement also required defendant to waive his right to appeal. Whilereleased on bail pending sentencing, defendant was arrested on new charges, prompting thePeople to seek an enhanced sentence as to the grand larceny conviction. After defendant admittedthat he violated County Court's Parker warnings and declined an Outley hearing,County Court sentenced defendant to a prison term of 1 to 3 years. This appeal ensued.
We agree with defendant that his waiver of the right to appeal is invalid and, therefore, hischallenge to the severity of his sentence is not precluded (see People v Smith, 193 AD3d 1114, 1115 [2021]; People v Mosher, 191 AD3d 1170,1171 [2021], lv denied 37 NY3d 959 [2021]). However, defendant's pro se submissionsreveal, and the records of the Department of Corrections and Community Supervision confirm,that defendant has been released from prison, has been discharged from parole and has reachedthe maximum expiration date of his sentence. Hence, defendant's claim that the sentence imposedwas harsh and excessive is moot (seee.g. People v Taylor, 194 AD3d 1264, 1266 [2021], lv denied 37 NY3d 975[2021]; People v Parker, 156 AD3d1059, 1060 [2017]; People vCancer, 132 AD3d 1019, 1020 [2015]).
Defendant's pro se ineffective assistance of counsel claim—to the extent that itimplicates the voluntariness of his plea—is unpreserved for our review absent evidence ofan appropriate postallocution motion (see People v Mayhew, 192 AD3d 1391, 1392 [2021]; People v Aponte, 190 AD3d 1031,1033 [2021], lv denied 37 NY3d 953 [2021]), and the narrow exception to thepreservation rule is inapplicable (seePeople v Avera, 192 AD3d 1382, 1382-1383 [2021], lv denied 37 NY3d 953[2021]; People v Crossley, 191AD3d 1046, 1047 [2021], lv denied 37 NY3d 991 [2021]). In any event, this claim islargely premised upon counsel's alleged failure to protest the underlying Parker violationand to argue for leniency at sentencing. As noted previously, defendant admitted that he violatedCounty Court's Parker warnings and expressly declined an Outley hearing, andthe record reflects that County Court was well aware—prior to imposingsentence—of both defendant's medical conditions and the circumstances giving rise todefendant's criminal misconduct. To the extent that defendant argues that his medical conditions,as well as his efforts to make restitution, militated against a term of imprisonment, this argumentis addressed to the severity of the sentence imposed—an issue that we have determined tobe moot. Defendant's remaining pro [*2]se contentions, includinghis assertion that his felony conviction should be reduced to a misdemeanor in the interest ofjustice, have been examined and found to be lacking in merit.
Egan Jr., J.P., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.