People v. Sofo

• Decision Date: 16 February 2022
• Docket Number: 2018–08672,S.C.I. No. 15-00575
• Parties: The PEOPLE, etc., respondent, v. Frank SOFO, appellant.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1004

159 N.Y.S.3d 718 (Mem)

The PEOPLE, etc., respondent,

v.Frank SOFO, appellant.

2018–08672

S.C.I. No. 15-00575

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

Submitted—November 18, 2021

February 16, 2022

Marianne Karas, Thornwood, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, NY (Steven A. Bender and Jill Oziemblewski of counsel), for respondent.

MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from an amended judgment of the Supreme Court, Westchester County (Susan Cacace, J.), rendered May 22, 2018, revoking a sentence of probation previously imposed by the same court, upon a finding that he violated conditions thereof, upon his admission, and imposing a sentence of imprisonment upon his previous convictions of promoting an obscene sexual performance by a child and possessing an obscene sexual performance by a child.

ORDERED that the amended judgment is affirmed.

Inasmuch as the maximum expiration date of the defendant's amended sentence has passed, the defendant's contention that the sentence imposed was excessive has been rendered academic (see People v. Reyes, 74 N.Y.2d 837, 838, 546 N.Y.S.2d 343, 545 N.E.2d 633 ; People v. Reyes–Lopez, 189 A.D.3d 1269, 134 N.Y.S.3d 218 ; People v. Corbin, 141 A.D.3d 730, 35 N.Y.S.3d 652 ; People v. Gonzalez, 113 A.D.3d 792, 793, 978 N.Y.S.2d 870 ).

The defendant's contention that he was deprived of due process by the delay in his appeal caused by the substitutions of assigned appellate counsel is not properly before this Court on his appeal from the amended judgment (see CPL 470.15[1] ; People v. Womack, 90 N.Y.2d 974, 975, 665 N.Y.S.2d 952, 688 N.E.2d 1034 ; cf. People v. Cousart, 58 N.Y.2d 62, 68–69, 458 N.Y.S.2d 507, 444 N.E.2d 971 ).

To the extent that the defendant contends that he was not advised of the possibility that his sentence of probation could be revoked, and under what conditions, this contention is unpreserved for appellate review. The defendant did not object to the sentence of imprisonment, move to withdraw his admission to the probation violation, or move to vacate the amended judgment on this ground (see People v. Diaz, 164 A.D.3d 829, 830, 79 N.Y.S.3d 562 ; People v. Blake, 126 A.D.3d 1375, 4 N.Y.S.3d 802 ; People v. Alvarez, 26 A.D.3d 442, 810 N.Y.S.2d 490 ). In any event, the defendant's contention is without merit. The record includes a written advisement, signed by the...