People v. Vivona

• Decision Date: 18 November 2021
• Docket Number: 110409
• Citation: 199 A.D.3d 1165,156 N.Y.S.3d 602
• Parties: The PEOPLE of the State of New York, Respondent, v. Vito F. VIVONA, Appellant.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 1165

156 N.Y.S.3d 602

The PEOPLE of the State of New York, Respondent,

v.Vito F. VIVONA, Appellant.

110409

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

Calendar Date: October 15, 2021

Decided and Entered: November 18, 2021

Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant, and appellant pro se.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered March 19, 2018, convicting defendant upon his plea of guilty of the crime of grand larceny in the third degree.

In December 2017, defendant pleaded guilty to grand larceny in the third degree with the understanding that he would be sentenced to six months in jail followed by five years of probation. The plea agreement also required defendant to waive his right to appeal. While released on bail pending sentencing, defendant was arrested on new charges, prompting the People to seek an enhanced sentence as to the grand larceny conviction. After defendant admitted that he violated County Court's Parker warnings and declined an Outley hearing, County Court sentenced defendant to a prison term of 1 to 3 years. This appeal ensued.

We agree with defendant that his waiver of the right to appeal is invalid and, therefore, his challenge to the severity of his sentence is not precluded (see People v. Smith, 193 A.D.3d 1114, 1115, 141 N.Y.S.3d 733 [2021] ; People v. Mosher, 191 A.D.3d 1170, 1171, 140 N.Y.S.3d 337 [2021], lv denied 37 N.Y.3d 959, 147 N.Y.S.3d 509, 170 N.E.3d 383 [2021] ). However, defendant's pro se submissions reveal, and the records of the Department of Corrections and Community Supervision confirm, that defendant has been released from prison, has been discharged from parole and has reached the maximum expiration date of his sentence. Hence, defendant's claim that the sentence imposed was harsh and excessive is moot (see e.g. People v. Taylor, 194 A.D.3d 1264, 1266, 144 N.Y.S.3d 409 [2021], lv denied 37 N.Y.3d 975, 150 N.Y.S.3d 684, 172 N.E.3d 797 [2021] ; People v. Parker, 156 A.D.3d 1059, 1060, 65 N.Y.S.3d 488 [2017] ; People v. Cancer, 132 A.D.3d 1019, 1020, 17 N.Y.S.3d 325 [2015] ).

Defendant's pro se ineffective assistance of counsel claim – to the extent that it implicates the voluntariness of his plea – is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Mayhew, 192 A.D.3d 1391, 1392, 145 N.Y.S.3d 202 [2021] ; People v. Aponte, 190 A.D.3d 1031, 1033, 138 N.Y.S.3d 724 [2021], lvs denied 37 N.Y.3d 953, 959, 960, 147 N.Y.S.3d 548, 549, 170 N.E.3d 422, 423 [2021]), and the narrow exception to the preservation rule is inapplicable (see People v. Avera, 192 A.D.3d 1382, 1382–1383, 145 N.Y.S.3d 199 [2021], lv denied 37 N.Y.3d 953, 147 N.Y.S.3d 501, 170 N.E.3d 375 [2021] ; People v. Crossley, 191 A.D.3d 1046, 1047, 137 N.Y.S.3d 746 [2021], lv denied 37 N.Y.3d 991, 152 N.Y.S.3d 414, 174 N.E.3d 354 [2021] ). In any event, this claim is largely premised upon counsel's alleged failure to protest the underlying Parker violation and to argue for leniency at sentencing. As noted previously, defendant admitted that he violated...