People v Guyett

2016 NY Slip Op 01524 [137 AD3d 1329]

March 3, 2016

Appellate Division, Third Department

As corrected through Wednesday, April 27, 2016

[*1]

The People of the State of New York, Respondent, vJames D. Guyett, Appellant.

Michael C. Ross, Bloomingburg, for appellant.

Gwen Wilkinson, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.

Appeal from a judgment of the County Court of Tompkins County (Rowley, J.),rendered September 4, 2014, which revoked defendant's probation and imposed asentence of imprisonment.

Defendant pleaded guilty to driving while intoxicated and was sentenced to fiveyears of probation. Thereafter, a violation of probation petition was filed against him.County Court issued an arrest warrant and, over two years later, defendant was locatedafter he was arrested in Schenectady County for driving while intoxicated. Defendantadmitted to violating the terms of his probation by failing to report. County Courtrevoked his probation and resentenced him to a prison term of 11/3 to 4years. Defendant now appeals, contending that his sentence is harsh and excessive.

We affirm. Initially, although defendant was released from prison in September2015, his appeal is not moot inasmuch as he remains on parole (see People v Donnelly, 80AD3d 797, 798 [2011]; People v Stewart, 185 AD2d 381, 382 [1992], lvdenied 80 NY2d 977 [1992]). "A sentence that is within the permissible statutoryrange will not be disturbed unless the sentencing court abused its discretion orextraordinary circumstances exist warranting a modification" (People vCiarleglio, 299 AD2d 571, 572 [2002] [citations omitted]; accord People v Lowe, 53AD3d 982, 983 [2008]). Here, defendant had been unable to comply with theconditions of his probation. Further, the resentence imposed was both authorized andwithin the range that defendant agreed to prior to admitting his violation of probation.Under the circumstances presented herein, we find no abuse of discretion orextraordinary circumstances warranting the [*2]reductionof the sentence in the interest of justice (see People v McCann, 100 AD3d 1150, 1151 [2012]; People v Smurphat, 91 AD3d980, 981 [2012], lv denied 18 NY3d 962 [2012]).

Egan Jr., J.P., Rose, Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.