| People v Cambridge |
| 2008 NY Slip Op 07435 [55 AD3d 1381] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BertramCambridge, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Patrick M. Carney, A.J.), renderedFebruary 22, 2007. The judgment convicted defendant, upon his plea of guilty, of attempted burglary inthe second degree. Defendant pleaded guilty in Supreme Court, Erie County (Amy J. Fricano, J.).
It is hereby ordered that the judgment so appealed from is unanimously modified as a matter ofdiscretion in the interest of justice and on the law by providing that the order of protection shall expireon September 18, 2011 and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attemptedburglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), defendant contendsthat Supreme Court erred in setting the expiration date of the order of protection from the date ofsentencing rather than from the date of conviction. Although that contention survives the valid waiver bydefendant of the right to appeal (see People vFomby, 42 AD3d 894, 896 [2007]), he failed to preserve it for our review (see People v Nieves, 2 NY3d 310,315-317 [2004]). Nevertheless, we exercise our power to review defendant's contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]; People v Chattley, 49 AD3d 1307[2008]), and we modify the judgment by providing that the order of protection shall expire onSeptember 18, 2011. Present—Martoche, J.P., Lunn, Fahey and Pine, JJ.