PRESENT: SCUDDER, P.J., HURLBUTT, MARTOCHE, SMITH, AND CENTRA, JJ.

KA 08-01614 & KA 07-02659
SCI No: 2004-3576

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V GARY MALLABER, DEFENDANT-APPELLANT.

Respondent having moved to dismiss the appeal taken from an order of the Supreme Court, Monroe County, dated September 17, 2007, on the ground that it is not appealable,

Now, upon reading and filing the affirmation of Leslie Swift, sworn to October 8, 2008, the notice of motion with proof of service thereof, the letter of Paul D. Fuller, dated December 10, 2008 and the affirmation of Drew DuBrin, dated December 9, 2008,

It is hereby ORDERED that the motion be and the same hereby is granted, and the appeal is dismissed, and

It is further ORDERED that the orders entered January 7, 2008, August 11, 2008 and October 24, 2008 are vacated, and

It is further ORDERED that the notices of appeal filed in the Office of the Clerk of the County of Monroe on September 4, 2008 and October 24, 2007 are deemed null and void.

Memorandum: Defendant appeals from an order permitting the modification of the terms and conditions of probation imposed on August 10, 2004. The modified terms and conditions became "part of the sentence" imposed on August 10, 2004 (CPL 410.20 [1]); and thus the order of Supreme Court permitting the modification of the terms and conditions of probation is not appealable as of right (see CPL 450.10), or by permission (see CPL 450.15).

Entered: April 10, 2009

Patricia L. Morgan, Deputy Clerk