People v. Guyett — 137 A.D.3d 1329

Majority

p. 1329

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

[25 NYS3d 909]

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

Defendant pleaded guilty to driving while intoxicated and was sentenced to five years 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 located after he was arrested in Schenectady County for driving while intoxicated. Defendant admitted to violating the terms of his probation by failing to report. County Court revoked his probation and resentenced him to a prison term of IV3 to 4 years. Defendant now appeals, contending that his sentence is harsh and excessive.

We affirm. Initially, although defendant was released from prison in September 2015, his appeal is not moot inasmuch as he remains on parole (see People v Donnelly, 80 AD3d 797 , 798 [2011]; People v Stewart, 185 AD2d 381 , 382 [1992], lv denied 80 NY2d 977 [1992]). “A sentence that is within the permissible statutory range will not be disturbed unless the sentencing court abused its discretion or extraordinary circumstances exist warranting a modification” (People v Ciarleglio, 299 AD2d 571 , 572 [2002] [citations omitted]; accord People v Lowe, 53

p. 1330

AD3d 982, 983 [2008]). Here, defendant had been unable to comply with the conditions of his probation. Further, the resentence imposed was both authorized and within the range that defendant agreed to prior to admitting his violation of probation. Under the circumstances presented herein, we find no abuse of discretion or extraordinary circumstances warranting the reduction of the sentence in the interest of justice (see People v McCann, 100 AD3d 1150 , 1151 [2012]; People v Smurphat, 91 AD3d 980 , 981 [2012], lv denied 18 NY3d 962 [2012]).

Egan Jr., J.P., Rose, Lynch and Clark, JJ., concur.

Ordered that the judgment is affirmed.

Cases cited

People v. Donnelly 80 AD3d 797 N.Y. App. Div. 2011-01-06 at 798 p. 1329
People v. Stewart 185 AD2d 381 N.Y. App. Div. 1992-07-09 at 382 p. 1329
People v. McCann 100 AD3d 1150 N.Y. App. Div. 2012-11-15 at 1151 p. 1330
People v. Smurphat 91 AD3d 980 N.Y. App. Div. 2012-01-05 at 981 p. 1330