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

KA 08-00961
Indictment No: 2005-0660

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V KEVIN UNTERBORN, DEFENDANT-APPELLANT.

Respondent having moved to dismiss the appeal taken from the order of the Monroe County Court, dated October 16, 2007, on the ground that it is not appealable,

Now, upon reading and filing the affirmation of Leslie Swift, dated October 3, 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 October 28, 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 July 15, 2008 and October 10, 2008 are vacated, and

It is further ORDERED that the notice of appeal filed in the Office of the Clerk of the County of Monroe on July 29, 2008 is deemed null and void.

Memorandum: Defendant appeals from an order permitting the modification of the terms and conditions of probation imposed on October 12, 2005. The modified terms and conditions became "part of the sentence" imposed on October 12, 2005 (CPL 410.20 [1]); and thus the order of County 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