Appeal from an order of the Justice Court of the Town of Poughkeepsie, Dutchess County (Paul O. Sullivan, J.), dated December 14, 2005, and an amended judgment of the same court, rendered on the same date. The order denied the branch of defendant's motion which sought to vacate the judgment of conviction pursuant to CPL 440.10 and granted the branch of defendant's motion to set aside the sentence pursuant to CPL 440.20. The amended judgment resentenced defendant to time served.

Appeal from order and amended judgment of conviction dismissed.

The appeal from the December 14, 2005 order is dismissed. No appeal as of right lies from an order denying defendant's motion pursuant to CPL 440.10 seeking to
vacate the judgment of conviction, and defendant did not seek permission to appeal therefrom (CPL 450.15 [1]; see People v Tatta, 196 AD2d 328 [1994]). In any event, defendant's claim that the court did not have jurisdiction to resentence him because the instant charge had been dismissed in County Court is belied by the record by which we are bound (see People v Prior, 4 NY2d 70, 73 [1958]). Regarding the portion of the order which granted the branch of the motion to set aside the sentence, defendant is not aggrieved thereby, and there is no provision authorizing such an appeal (CPL 450.10; see People v Kronberg, 243 AD2d 132 [1998]; People v Ratner, 2003 NY Slip Op 50756[U] [App Term, 9th & 10th Jud Dists]). The appeal from the amended judgment is dismissed since any issues relating to the validity of the sentence are moot as defendant has served the sentence (People v McLaine, 64 NY2d 934 [1985]). [*2]

Rudolph, P.J., LaCava and Emerson, JJ., concur.
Decision Date: June 11, 2007