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People v. Setterlund

137 A.D.3d 1420 Court N.Y. App. Div. Decision date 2016-03-17 English

Judges Garry, Rose, Lynch and Clark, JJ., concur.

Delivered by Peters, P.J.

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p. 1420
The People of the State of New York, Respondent, v Tracy Setterlund, Appellant.
[27 NYS3d 723]

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 He waived his right to appeal and was sentenced to a five-year period of probation, his license was revoked and fines and fees were imposed.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 menac

p. 1421
ing 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 The sentence was amended by order entered July 14, 2014 to the extent that the conditional discharge was revoked.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 AD3d 1340 , 1341 [2015], lv denied 26 NY3d 932 [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 AD3d 1145 , 1146 n 3 [2014], lv denied 24 NY3d 1118 [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 judgment, and his notice of appeal here, filed June 11, 2014, was untimely as to that 2011 judgment (see CPL 460.10 [1] [a]; People v Rutnik, 198 AD2d 617 , 617-618 [1993]). Further, defendant did not file a motion for an extension of time to file an appeal and no basis appears for such an extension (see CPL 460.30 [1]; People v Jean-Louis, 74 AD3d 1481 , 1482 [2010], lv denied 15 NY3d 953 [2010]).

Garry, Rose, Lynch and Clark, JJ., concur.

Ordered that the judgment is affirmed.

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