People v. Smallwood

• Decision Date: 23 December 2016
• Citation: 2016 N.Y. Slip Op. 08626,145 A.D.3d 1447,44 N.Y.S.3d 623
• Parties: The PEOPLE of the State of New York, Respondent, v. Martin SMALLWOOD, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1447

44 N.Y.S.3d 623

2016 N.Y. Slip Op. 08626

The PEOPLE of the State of New York, Respondent,

v.Martin SMALLWOOD, Defendant–Appellant.

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

Dec. 23, 2016.

James S. Kernan, Public Defender, Lyons (Robert Tucker of Counsel), for Defendant–Appellant.

Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of Counsel), for Respondent.

PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of three counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ). County Court imposed on defendant a determinate term of imprisonment of two years in accordance with section 70.70 because the crime herein constituted defendant's second felony drug offense, with the term of imprisonment to be followed by 1 ½ years of postrelease supervision. The court also directed the Department of Corrections and Community Supervision to enroll defendant in the shock incarceration program (see § 60.04[7][a] ). Defendant was removed from the shock incarceration program prior to completion, finished the remainder of his determinate sentence in prison, and was subsequently released to parole supervision.

Inasmuch as defendant has completed his term of incarceration and is currently on parole, his contention that he was entitled to placement in an "alternative-to-shock-incarceration program" during incarceration is moot (Penal Law § 60.04[7][b][i] ; see generally People ex rel. Dickerson v. Unger, 62 A.D.3d 1262, 1263, 877 N.Y.S.2d 727, lv. denied 12 N.Y.3d 716, 2009 WL 1851331 ), and none of the issues raised by defendant fall within the exception to the mootness doctrine (see generally Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 ).

Contrary to the further contention of defendant, we conclude that the sentence is not unduly harsh and severe. However, we note that the certificate of conviction and the uniform sentence and commitment form should be amended because they incorrectly reflect that defendant was sentenced as a second felony offender when he was actually sentenced as a second felony drug offender (see People v. Oberdorf, 136 A.D.3d 1291, 1292–1293, 24 N.Y.S.3d 545, lv. denied 27 N.Y.3d 1073, 38 N.Y.S.3d 843, 60 N.E.3d 1209 ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.