| People v Williams |
| 2007 NY Slip Op 10301 [46 AD3d 1424] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AntonioWilliams, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered July25, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in thefirst degree and attempted rape in the first degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [3]) andattempted rape in the first degree (§§ 110.00, 130.35 [1]). Even assuming, arguendo,that the waiver by defendant of the right to appeal is invalid and thus that his challenge to theseverity of the sentence is properly before us (see generally People v Lopez, 6 NY3d 248, 256 [2006]), wenevertheless conclude that the sentence is not unduly harsh or severe. Defendant failed topreserve for our review his contention that he was entitled to jail time credit with respect to theduration of the order of protection (see CPL 470.05 [2]). In any event, we conclude thatthe order of protection need not be amended. At the time County Court issued the order ofprotection, the relevant statute provided that the duration of the order of protection "shall notexceed the greater of: (i) five years from the date of such conviction, or (ii) three years from thedate of the expiration of the maximum term of an indeterminate or the term of a determinatesentence of imprisonment actually imposed" (CPL 530.13 [former (4)]). Defendant wassentenced on July 25, 2006 to determinate concurrent prison terms of nine years each, and thecourt issued an order of protection to remain in effect until July 25, 2017. Thus, the order ofprotection was 11 years in duration and, because defendant had been in custody for less than oneyear at the time of sentencing, the duration of the order of protection did not exceed the statutorylimit of 12 years, even considering defendant's jail time credit. Present—Scudder, P.J.,Smith, Centra, Lunn and Peradotto, JJ.