People v. Fusco
| Decision Date | 11 April 2013 |
| Citation | 961 N.Y.S.2d 925,2013 N.Y. Slip Op. 02427,105 A.D.3d 1148 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jennie FUSCO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
R. Graham McNamara, Glenville, for appellant.
Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
Before: PETERS, P.J., SPAIN, GARRY and EGAN JR., JJ.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered February 18, 2011, convicting defendant upon her plea of guilty of the crime of grand larceny in the third degree.
Defendant pleaded guilty to one count of grand larceny in the third degree in satisfaction of various charges against her, and waived her right to appeal. County Court sentenced her, as a second felony offender, to a prison term of 1 1/2 to 3 years, to run concurrently with a sentence she was already serving ( see generally People v. Fusco, 91 A.D.3d 985, 935 N.Y.S.2d 735 [2012];People v. Fusco, 91 A.D.3d 984, 936 N.Y.S.2d 360 [2012] ). Defendant appeals from this judgment of conviction.
Thereafter, County Court learned that the sentence imposed was illegal, and that it had been obliged to impose an indeterminate prison sentence of at least 2 to 4 years ( seePenal Law §§ 70.06[3][d]; [4]; 155.35). Defendant was accordingly summoned and, with her consent, County Court amended the judgment of conviction by reducing her conviction to the class E felony of attempted grand larceny in the third degree ( seePenal Law §§ 70.06[3][e]; 110.05 [6] ). No notice of appeal from the amended judgment of conviction appears in the record. The amended judgment went beyond resentencing defendant, altering the very crime for which she was convicted ( compare People v. Brown, 47 A.D.2d 567, 567, 365 N.Y.S.2d 796 [1975] ). Accordingly, the original judgment was vacated, and the sentence therefrom superseded;lacking notice of an appeal from the amended judgment, this appeal from the original judgment must be dismissed ( seeCPL 450.30; People v. Gannon, 2 A.D.3d 1214, 1214, 768 N.Y.S.2d 850 [2003];People v. Proctor, 76 A.D.2d 756, 756, 428 N.Y.S.2d 263 [1980] ).
ORDERED that the appeal is dismissed.
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People v. Wilson
... ... Inasmuch as defendant was permitted to withdraw his plea in appeal No. 2 and re-entered a plea of guilty to a different crime, resulting in the judgment in appeal No. 4, the judgment in appeal No. 2 was vacated and the sentence thereon superseded (see People v. Fusco , 105 A.D.3d 1148, 1148, 961 N.Y.S.2d 925 [3d Dept. 2013] ). Thus, defendant's appeal from the judgment of conviction in appeal No. 2 must be dismissed as moot (see People v. Pimental , 189 A.D.2d 788, 788, 592 N.Y.S.2d 271 [2d Dept. 1993] ; see generally People v. Thagard , 115 A.D.3d 1314, 1315, ... ...
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