                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 3, 2016                     107153
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THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JAMES D. GUYETT,
                    Appellant.
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Calendar Date:   January 19, 2016

Before:   Egan Jr., J.P., Rose, Lynch and Clark, JJ.

                             __________


     Michael C. Ross, Bloomingburg, for appellant.

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

                             __________


      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 1a
to 4 years. Defendant now appeals, contending that his sentence
is harsh and excessive.
                              -2-                  107153

      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 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.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
