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

The PEOPLE of the State of New York, Respondent, v. Henry CLAYTON, Appellant.

Decided: March 29, 2007

Before:  MERCURE, J.P., PETERS, MUGGLIN and KANE, JJ. John Ferrara, Monticello, for appellant. Donald A. Williams, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered February 6, 2006, convicting defendant upon his plea of guilty of the crime of forgery in the second degree.

Defendant pleaded guilty to forgery in the second degree with the expectation that he would be sentenced to a prison term of 2 to 4 years.   Prior to sentencing, however, he was arrested and charged with assaulting a police officer.   County Court, following an inquiry, determined that, inasmuch as there was a legitimate basis for defendant's arrest, it was not bound by the terms of the negotiated plea agreement and it sentenced defendant to a prison term of 3 1/212 to 7 years (see People v. Outley, 80 N.Y.2d 702, 712-714, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993] ).   On this appeal, defendant asserts that the subsequent dismissal of the assault charge against him requires this Court to remit the matter for a new hearing at which time the agreed-upon 2 to 4-year sentence could be imposed.

Inasmuch as the People have informed this Court that defendant was resentenced on January 4, 2007 to a prison term of 2 to 4 years, “the initial sentence has been superceded and any issue with respect to sentencing on this appeal is now moot” (People v. Gannon, 2 A.D.3d 1214, 1214, 768 N.Y.S.2d 850 [2003] ).

ORDERED that the appeal is dismissed, as moot.


MERCURE, J.P., PETERS and KANE, JJ., concur.

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