v.

RUNE JACOBSEN, Appellant.

Submitted By: Victor M. Levy (counsel for the appellant); Daniel T. Butler (counsel for the respondent)

Conviction Affirmed: Andrew J. DiPaola, P.J.; Angelo J. Ingrassia & Louis C. Palella, JJ.

DECISION OF THE COURT

<SM-1>

Appeal by defendant from a judgment of the District Court, Nassau County (J. Carter, J. - Plea; D. Sher, J. - sentence), rendered on December 1, 1997, convicting him of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2), upon his plea of guilty, and imposing sentence.

Judgment of conviction unanimously affirmed.

We note initially that defendant waived his right to appeal as a condition of his negotiated plea. However, it is apparent from the plea transcript that defendant was promised a no-jail commitment as part of his plea. Inasmuch as the sentencing court thereafter imposed a one year term of <SM-2> incarceration defendant cannot be deemed to have knowingly and voluntarily waived his right to appeal (see, People v. Arbil, C. 190 AD2d 856). Nonetheless, defendant's claim of error pertaining to the appropriateness of the one year sentence imposed and the sentence proceedings are unpreserved for appellate review since defendant did not raise any objections thereto at sentencing, and did not thereafter move to vacate the judgment or set aside the sentence.

In any event, since it appears that the sentence of incarceration has been served, any issues raised with regard to the propriety thereto have been rendered moot (see, People v. McLaine, 64 NY2d 934; see also, People v. Reyes, 74 NY2d 837).

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