        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

954
KA 15-01108
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARTIN SMALLWOOD, DEFENDANT-APPELLANT.


JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (ROBERT TUCKER OF COUNSEL),
FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Daniel G.
Barrett, J.), rendered March 26, 2015. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the third degree (three counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of three counts of criminal sale of a
controlled substance in the third degree (Penal Law § 220.39 [1]).
County Court imposed on defendant a determinate term of imprisonment
of two years in accordance with section 70.70 because the crime herein
constituted defendant’s second felony drug offense, with the term of
imprisonment to be followed by 1½ years of postrelease supervision.
The court also directed the Department of Corrections and Community
Supervision to enroll defendant in the shock incarceration program
(see § 60.04 [7] [a]). Defendant was removed from the shock
incarceration program prior to completion, finished the remainder of
his determinate sentence in prison, and was subsequently released to
parole supervision.

     Inasmuch as defendant has completed his term of incarceration and
is currently on parole, his contention that he was entitled to
placement in an “alternative-to-shock-incarceration program” during
incarceration is moot (Penal Law § 60.04 [7] [b] [i]; see generally
People ex rel. Dickerson v Unger, 62 AD3d 1262, 1263, lv denied 12
NY3d 716), and none of the issues raised by defendant fall within the
exception to the mootness doctrine (see generally Matter of Hearst
Corp. v Clyne, 50 NY2d 707, 714-715).

     Contrary to the further contention of defendant, we conclude that
                                 -2-                           954
                                                         KA 15-01108

the sentence is not unduly harsh and severe. However, we note that
the certificate of conviction and the uniform sentence and commitment
form should be amended because they incorrectly reflect that defendant
was sentenced as a second felony offender when he was actually
sentenced as a second felony drug offender (see People v Oberdorf, 136
AD3d 1291, 1292-1293, lv denied 27 NY3d 1073).




Entered:   December 23, 2016                   Frances E. Cafarell
                                               Clerk of the Court
