People v. Allen

• Decision Date: 08 February 2013
• Citation: 958 N.Y.S.2d 914,103 A.D.3d 1214,2013 N.Y. Slip Op. 00827
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Robbie L. ALLEN, Defendant–Appellant. (Appeal No. 2.)

103 A.D.3d 1214

958 N.Y.S.2d 914

2013 N.Y. Slip Op. 00827

The PEOPLE of the State of New York, Respondent,

v.Robbie L. ALLEN, Defendant–Appellant. (Appeal No. 2.)

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 8, 2013.

Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), rendered April 5, 2011. The judgment convicted defendant, upon his plea of guilty, of bail jumping in the second degree.

Leanne Lapp, Public Defender, Canandaigua (Mark C. Davison of Counsel), for Defendant–Appellant.

R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.

MEMORANDUM:

In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of *915guilty of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ), and, in appeal No. 2, he appeals from a separate judgment convicting him, also upon his plea of guilty, of bail jumping in the second degree (§ 215.56). We note at the outset that defendant raises no challenge to the judgment in appeal No. 1, and we therefore dismiss the appeal from that judgment ( seeCPL 470.60[1]; People v. Allen, 93 A.D.3d 1340, 1340–1341, 941 N.Y.S.2d 434,lv. denied19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206). With respect to appeal No. 2, defendant challenges only the sentence, but concedes that he has been resentenced upon the judgment in that appeal. Consequently, inasmuch as “the initial sentence has been super[s]eded[,] any issue with respect to sentencing on th[at] appeal is now moot” ( People v. Gannon, 2 A.D.3d 1214, 1214, 768 N.Y.S.2d 850;see People v. Haywood, 203 A.D.2d 966, 966, 612 N.Y.S.2d 1016,lv. denied83 N.Y.2d 967, 616 N.Y.S.2d 20, 639 N.E.2d 760).

It is hereby ORDERED that said appeal is unanimously dismissed.

SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, and VALENTINO, JJ., concur.