                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 30, 2016                     106995
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

STEVEN T. JOHNSTON,
                    Appellant.
________________________________


Calendar Date:   May 25, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

                             __________


     Rebecca L. Fox, Plattsburgh, for appellant.

      Craig P. Carriero, District Attorney, Malone (Jennifer M.
Hollis of counsel), for respondent.

                             __________


McCarthy, J.

      Appeal from a judgment of the County Court of Franklin
County (Richards, J.), rendered March 18, 2014, which resentenced
defendant following his conviction of the crime of assault in the
second degree.

      In satisfaction of a three-count indictment, defendant
pleaded guilty to assault in the second degree and was sentenced,
in 2009, to five years of probation with the first 180 days to be
served in jail. In 2013, a petition was filed charging defendant
with violating several conditions of his probation. Pursuant to
a negotiated agreement, defendant waived a hearing and admitted
that he had violated a condition of probation by failing to
obtain a required substance abuse evaluation. Consistent with
that agreement, County Court vacated defendant's probation and
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resentenced him to a period of intermittent imprisonment of 10
months of weekends in jail. Defendant was subsequently arrested
on a warrant that was issued after he failed to report to jail to
serve his intermittent sentence on two weekends in February 2014.
After a two-day inquiry, at which defendant was afforded an
opportunity to be heard and to submit documentary evidence, the
court held that defendant had failed to report to jail on both
weekends and had not furnished a reasonable explanation for such
failure (see Penal Law § 85.05 [1] [b]). The court resentenced
defendant to a prison term of three years to be followed by three
years of postrelease supervision. Defendant now appeals.

      Initially, defendant primarily directs his arguments on
appeal to his 2013 guilty plea to the violation of probation and
the resentence imposed thereon. However, defendant did not file
a timely appeal from that judgment, and his notice of appeal
filed here on April 17, 2014 is untimely as to that 2013 judgment
(see CPL 460.10 [1] [a]; People v Setterlund, 137 AD3d 1420, 1421
[2016]). Accordingly, defendant's claims directed at his 2013
plea to the probation violation and the resentence are not
properly before this Court.

      Next, defendant argues that the sentence imposed by County
Court upon its determination that he had violated the
intermittent sentence was harsh and excessive. An intermittent
sentence is "revocable" upon a finding that a defendant violated
its terms (Penal Law § 85.00 [1]; see Penal Law § 85.05 [1] [b];
People v Dick, 106 AD3d 1332, 1333 [2013]). Here, after County
Court imposed a sentence of probation in 2009 upon defendant's
guilty plea to assault in the second degree, a violent class D
felony (see Penal Law §§ 70.02 [1] [c]; 120.05 [1]), he
admittedly violated his probation in 2013 and thereafter also
violated his intermittent sentence in 2014 by failing to report
on two consecutive weekends to serve his time in jail. County
Court considered the relevant sentencing factors, including
defendant's proffered reasons for failing to report to jail.
Under these circumstances, we are not persuaded that the three-
year prison sentence, which was less than the maximum potential
prison sentence of 2 to 7 years (see Penal Law §§ 60.05 [5];
70.02 [3] [c]), was harsh or excessive. Further, the three-year
term of postrelease supervision was authorized and, contrary to
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defendant's claim, properly pronounced by the court at the
resentencing (see Penal Law §§ 70.00 [6]; 70.45 [2] [e]). In
view of defendant's history of noncompliance and the fact that he
could have been sentenced to a much longer prison term, we
discern no basis upon which to modify that term of postrelease
supervision (see People v Williams, 126 AD3d 1181, 1182 [2015],
lv denied 25 NY3d 1209 [2015]).

      Finally, defendant's claim that County Court erred in
imposing sentence without requesting an updated sentencing report
is unpreserved, given his failure to request an updated report or
to object at sentencing (see People v Miller, 90 AD3d 1416, 1417
[2011], lv denied 18 NY3d 960 [2012]). In any event, the record
establishes that defendant was given ample opportunity to address
the relevant sentencing factors and that the court was
sufficiently aware of his "intervening history" (People v Ruff,
50 AD3d 1167, 1168 [2008]).

     Peters, P.J., Egan Jr., Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
