| People v Lake |
| 2007 NY Slip Op 08676 [45 AD3d 1409] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Shawn Lake,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Steven Meyer of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered April 12,2006. The judgment convicted defendant, upon his plea of guilty, of burglary in the first degree,criminal sexual act in the first degree (two counts), and rape in the first 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 Erie County Court for further proceedings in accordance with the followingmemorandum: On appeal from a judgment convicting him, upon his plea of guilty, of burglary inthe first degree (Penal Law § 140.30 [3]), rape in the first degree (§ 130.35 [1]), andtwo counts of criminal sexual act in the first degree (§ 130.50 [1]), defendant contends thatCounty Court erred in refusing to suppress his statements to the police. We reject that contention.Although the suppression hearing testimony indicates that defendant was under the influence of acontrolled substance while being questioned by the police, there is no evidence that defendant "'was intoxicated to the degree of mania, or of being unable to understand the meaning of hisstatements' " (People v Schompert, 19 NY2d 300, 305 [1967], cert denied 389 US874 [1967]; see People v Carpenter,13 AD3d 1193 [2004], lv denied 4 NY3d 797 [2005]; see also People v Evans, 34 AD3d1301, 1302-1303 [2006], lv denied 8 NY3d 845 [2007]). We reject defendant'sfurther contention that the sentence is unduly harsh or severe. Where, as here, a "defendanteffects a plea bargain and receives the precise sentence that was promised, he should not later beheard to complain that he received what he bargained for" (People v Chambers, 123AD2d 270, 270 [1986]; see People vDixon, 38 AD3d 1242 [2007]). As the People correctly concede, however, the courterred in setting the expiration date of the order of protection without taking into account thejail-time credit to which defendant is entitled (see People v Fomby, 42 AD3d 894, 896 [2007]; Dixon, 38AD3d 1242 [2007]; People vMingo, 38 AD3d 1270 [2007]). Although defendant failed to preserve that contentionfor our review (see People v Nieves,2 NY3d 310, 315-317 [2004]), we exercise our power to review it as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]). We therefore modify the judgment byamending the order of protection, and we remit the matter to County Court to determine thejail-time credit to which defendant is entitled. The court must specify in the order of protectionan expiration date in accordance with CPL 530.13 (former [4]), the version of the statute in effectwhen the judgment was rendered on April 12, 2006. Present—Hurlbutt, J.P., Centra, Lunn,Fahey and Pine, JJ.