| People v Goins |
| 2007 NY Slip Op 08609 [45 AD3d 1371] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Larry Goins,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John F. O'Donnell, J.), renderedFebruary 8, 2006. The judgment convicted defendant, upon his plea of guilty, of assault in thesecond degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified as a matter of discretion in the interest of justice and on the law byamending the order of protection and as modified the judgment is affirmed, and the matter isremitted to Supreme Court, Erie County, for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon a plea ofguilty of assault in the second degree (Penal Law § 120.05 [2]). Defendant was sentencedas a second felony offender on February 8, 2006 to a determinate term of incarceration of threeyears and a five-year period of postrelease supervision. In addition, pursuant to a final order ofprotection, defendant was ordered to stay away from and have no further contact with the victimuntil February 8, 2014.
Defendant contends, and the People correctly concede, that the duration of the order ofprotection is invalid inasmuch as the expiration date of the order does not comply with theprovisions of CPL 530.13 (4) in effect at the time the judgment was rendered. It also is invalid onthe ground that Supreme Court failed to consider the jail-time credit to which defendant isentitled (see People v Clinkscales,35 AD3d 1266, 1267 [2006]; People v Hare, 27 AD3d 1171, 1172 [2006], lv denied 6NY3d 894 [2006]; People v Victor,20 AD3d 927, 928 [2005], lv denied 5 NY3d 833, 885 [2005]). Although defendantfailed to preserve his contention for our review (see People v Nieves, 2 NY3d 310, 315-317 [2004]), we exerciseour power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]; Clinkscales, 35 AD3d at 1267). We therefore modify the judgment by amendingthe order of protection, and we remit the matter to Supreme Court to determine the jail-timecredit to which defendant is entitled, and to specify in the order of protection an expiration datein accordance with CPL 530.13 (former [4]), the version of the statute in effect when thejudgment was rendered on February 8, 2006. Present—Scudder, P.J., Martoche, Smith,Lunn and Pine, JJ.