State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 8, 2015 106970 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

LATOYA CANCER,

Appellant.

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Calendar Date: September 8, 2015

Before: McCarthy, J.P., Egan Jr., Rose and Clark, JJ.

__________

Barrett D. Mack, Albany, for appellant.

Eric T. Schneiderman, Attorney General, New York City

(Nikki Kowalski of counsel), for respondent.

__________

McCarthy, J.P.

Appeal from a judgment of the County Court of Albany County

(Herrick, J.), rendered September 17, 2013, convicting defendant

upon her guilty plea of the crime of criminal possession of a

controlled substance in the fourth degree.

Following an investigation by the Attorney General's

Organized Crime Task Force, defendant and 33 others were charged

in a 226-count indictment with conspiracy and other crimes

stemming from the distribution of cocaine in multiple counties in

New York.1 Defendant was also separately charged in a superior

1 Defendant was named in three counts of the indictment

which charged her with conspiracy in the second degree (count 1)
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court information with grand larceny in the third degree, and the

Albany County District Attorney filed a petition alleging that

she had violated probation.2 The Attorney General and District

Attorney negotiated a joint plea agreement to resolve all three

matters, which required defendant's cooperation with the

conspiracy investigation. Pursuant thereto, defendant entered a

guilty plea to count 195 of the indictment, which charged her

with criminal possession of a controlled substance in the fourth

degree, and to attempted grand larceny in the third degree, and

she admitted violating probation. As part of that agreement,

defendant waived her right to appeal as to all three matters and

signed a written waiver of appeal.

At sentencing, County Court revoked defendant's probation

and imposed a one-year jail term with credit for time served on

the violation petition. With respect to the attempted grand

larceny conviction, the court granted defendant a conditional

discharge and ordered her to pay certain restitution. The court

subsequently imposed a one-year jail term on the drug-related

conviction, to be served consecutively to the one-year term

imposed for violating probation. Defendant now appeals from the

judgment of conviction for criminal possession of a controlled

substance in the fourth degree.

On appeal, defendant argues that she did not get the

benefit of the promised plea agreement with regard to her

sentence, which she also argues is harsh and excessive. Given

that defendant has completed her consecutive one-year jail

sentences during the pendency of this appeal, these claims

related to sentencing are moot (see People v Rodwell, 122 AD3d

1065, 1068 [2014], lv denied 25 NY3d 1170 [2015]; People v Pozzi,

117 AD3d 1325, 1325 [2014]; People v Trombley, 111 AD3d 984, 984-

985 [2013]).

and criminal possession of a controlled substance in the third

and fourth degrees (counts 194 and 195, respectively).

2 The violation of probation matter is the subject of a

separate appeal (People v Cancer, ___ AD3d ___ [appeal No.

106293, decided herewith]).
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Egan Jr., Rose and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court