| People v Vega |
| 2008 NY Slip Op 02250 [49 AD3d 1185] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AdalbertoVega, Jr., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered October 4, 2004. The judgment convicted defendant, upon his plea of guilty, of assaultin the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by amending the order of protection and asmodified the judgment is affirmed, and the matter is remitted to Supreme Court, Monroe County,for further proceedings in accordance with the following memorandum: Defendant appeals froma judgment convicting him, upon his plea of guilty, of assault in the first degree (Penal Law§ 120.10 [1]). We note at the outset that we agree with defendant that his waiver of theright to appeal is invalid (see generallyPeople v Lopez, 6 NY3d 248, 256 [2006]). Supreme Court did not ask defendant duringthe plea colloquy whether he agreed to waive his right to appeal, and the prosecutor's singleinquiry of defendant whether he understood that he was waiving his right to appeal is insufficientto "establish that [he] understood that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (id.; see People v Phillips, 28 AD3d 939 [2006], lv denied 7NY3d 761 [2006]; People v Brown, 296 AD2d 860 [2002], lv denied 98 NY2d767 [2002]). We further agree with defendant that the court erred in fixing the duration of theorder of protection without taking into account the jail time credit to which he is entitled (see People v Clinkscales, 35 AD3d1266 [2006]; People v Hare, 27AD3d 1171, 1172 [2006], lv denied 6 NY3d 894 [2006]; People v Newman, 21 AD3d 1343[2005]). Although defendant failed to preserve for our review his contention with respect to theduration of the order of protection (seePeople v Nieves, 2 NY3d 310, 315-317 [2004]), we exercise our power to review it as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We thereforemodify the judgment by amending the order of protection, and we remit the matter to SupremeCourt to determine the jail-time credit to which defendant is entitled, and to specify in the orderof protection an expiration date in accordance with CPL 530.13 (former [4]), the version of thestatute in effect when the judgment was rendered on October 4, 2004.
Defendant failed to preserve for our review his further contention concerning the failureto comply with the procedural requirements of CPL 400.21 (see People v Pellegrino, 60NY2d 636, 637 [1983]; People vHodge, 23 AD3d 1062, 1063 [2005]). In any event, defendant waived strict [*2]compliance with CPL 400.21 by admitting the prior felonyconviction in open court (see People v Harris, 233 AD2d 959 [1996], lv denied89 NY2d 1094 [1997]; People v Stephens, 193 AD2d 1087 [1993], lv denied 82NY2d 727 [1993]; People v Diomede, 185 AD2d 709, 710 [1992], lv denied 80NY2d 928 [1992]). Present—Hurlbutt, J.P., Smith, Centra, Lunn and Fahey, JJ.