People v. Setterlund

• Decision Date: 17 March 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Tracy SETTERLUND, Appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1420

27 N.Y.S.3d 723

The PEOPLE of the State of New York, Respondent,

v.Tracy SETTERLUND, Appellant.

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

March 17, 2016.

Theodore J. Stein, Woodstock, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE, LYNCH and CLARK, JJ.

PETERS, P.J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered June 4, 2014, which revoked defendant's probation and imposed a sentence of imprisonment.

In 2011, pursuant to a negotiated plea agreement, defendant waived indictment and pleaded guilty as charged in a superior court information to driving while ability impaired by drugs as a felony, and admitted that he had previously been convicted of driving while intoxicated. He waived his right to appeal and was sentenced to a five-year period of probation, his license was revoked and fines and fees were imposed. In 2014, defendant was charged with violating the conditions of his probation based upon, among other violations, his conviction for menacing in the second degree and his commission of the crime of contempt in the first degree for violating an order of protection. Defendant admitted violating probation, pursuant to a plea agreement. Consistent therewith, County Court revoked defendant's probationary sentence and imposed a prison term of 1 to 3 years, to be served under parole supervision at Willard State Prison Program, with a consecutive three-year conditional discharge that required him to install an interlock ignition device. The sentence was amended by order entered July 14, 2014 to the extent that the conditional discharge was revoked. Defendant now appeals.

Initially, we note that while defendant failed to file a notice of appeal from the resentencing, we will exercise our discretion to treat as valid the notice of appeal, which was prematurely filed on June 11, 2014 (see CPL 460.10 [6] ; People v. McFadden, 127 A.D.3d 1340, 1341, 7 N.Y.S.3d 641 [2015], lv. denied 26 N.Y.3d 932, 17 N.Y.S.3d 95, 38 N.E.3d 841 [2015] ). However, defendant raises no arguments in his appellate brief addressed to his violation of probation or to the resentencing thereon and, thus, we deem that aspect of the appeal to be abandoned (see People v. Benson, 119 A.D.3d 1145, 1146 n. 3, 990 N.Y.S.2d 321 [2014], lv. denied 24 N.Y.3d 1118, 3 N.Y.S.3d 759, 27 N.E.3d 473 [2015] ). All of defendant's arguments on this appeal are directed at his 2011 guilty plea and sentencing, but he did not file a timely appeal from that...