People v. Drumm

75 A.D.3d 998, 904 N.Y.S.2d 680, 76 A.D.2d 719, 905 N.Y.S.2d 519

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 29, 2010
• Status: Published

Opinion

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered November 13, 2006, which resentenced defendant following his conviction of the crime of sexual abuse in the first degree.

In satisfaction of a five-count indictment, defendant pleaded guilty to sexual abuse in the first degree. He waived his right to appeal all issues except for those that were constitutional in nature and those pertaining to the severity of the sentence. No particular sentence was agreed to as part of the plea agreement and County Court sentenced defendant to 1 to 3 years in prison. The court, however, subsequently resentenced defendant to IV2 to 3 years in prison due to a change in the law after defendant declined the opportunity to withdraw his plea. Defendant appeals.

Appellate counsel seeks to be relieved of her assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal. Based upon our review of the record and counsel’s brief, we agree.

* Therefore, the judgment is affirmed and counsel’s application for leave to withdraw is granted (see People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633 [2001]).

Cardona, EJ., Spain, Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, and application to be relieved of assignment granted.

We note that any claims regarding the severity of the sentence are moot given that defendant has served the maximum term of his sentence and has been released from prison (see People v Messier, 43 AD3d 1205, 1206 [2007]; People v Davis, 31 AD3d 896, 897 [2006]).