| People v Whitfield |
| 2008 NY Slip Op 03865 [50 AD3d 1580] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rayshawn K.Whitfield, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered January16, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal sale of acontrolled substance in the third degree (two counts), criminal possession of a controlledsubstance in the third degree, criminal possession of a controlled substance in the fifth degreeand criminal possession of a controlled substance in the seventh degree (two counts).
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 providing that the order of protectionshall expire on March 24, 2024 and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,inter alia, two counts of criminal sale of a controlled substance in the third degree (Penal Law§ 220.39 [1]) and one count of criminal possession of a controlled substance in the thirddegree (§ 220.16 [1]). Contrary to defendant's contention, the bargained-for sentence is notunduly harsh or severe. Defendant failed to preserve for our review his contention that theimposition of an order of protection for a duration longer than that permitted by CPL 530.13(former [4]), effective at the time of the commission of the crimes, violates the ex post factoprohibition in article I (§ 10, cl 1) of the US Constitution, and we decline to address thatcontention as a matter of discretion in the interest of justice (see People v Ruz, 70 NY2d942 [1988]; People v Lyday, 241 AD2d 950 [1997]).
Defendant also failed to preserve for our review his contention that County Court erred infixing the duration of the order of protection based on all of the counts of which defendant wasconvicted, rather than on only those counts involving the subject of the order of protection, i.e.,the two counts of criminal sale of a controlled substance in the third degree. We exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]), and we conclude that the eight-year duration of the order of protection mustcommence upon the expiration of the consecutive five-year terms of imprisonment imposed onthose counts (see People v Harris, 285 AD2d 980 [2001]; People v Nunez, 267AD2d 1050 [1999], lv denied 94 NY2d 905 [2000]). We therefore modify the judgmentby providing that the order of protection shall expire on March 24, 2024.Present—Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.