| People v Tate |
| 2011 NY Slip Op 02600 [83 AD3d 1467] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James H. Tate,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered March26, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in thefirst 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 Erie County Court for furtherproceedings in accordance with the following memorandum: Defendant appeals from a judgmentconvicting him upon his plea of guilty of criminal contempt in the first degree (Penal Law§ 215.51 [b] [v]). We agree with defendant that County Court erred in calculating theduration of the order of protection issued against defendant without taking into account the jailtime credit to which he is entitled (seePeople v Bradford, 61 AD3d 1419, 1421 [2009], affd 15 NY3d 329 [2010]).Although defendant raises that contention for the first time on appeal and has thus failed topreserve it for our review, we nonetheless exercise our power to review it as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). We therefore modify thejudgment by amending the order of protection, and we remit the matter to County Court todetermine the jail time credit to which defendant is entitled and to specify in the order ofprotection an expiration date in accordance with CPL 530.13 (see Bradford, 61 AD3d at1421). Furthermore, as the People correctly concede, defendant's waiver of the right to appealwas invalid because County Court conflated the waiver of the right to appeal with the rightsforfeited by defendant based on his guilty plea (see generally People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Abrams, 75 AD3d 927[2010], lv denied 15 NY3d 918 [2010]). The invalidity of defendant's waiver of the rightto appeal, however, does not impact his final contention on appeal, i.e., that the order ofprotection is unduly harsh and severe, inasmuch as an order of protection is not a part of thesentence (see People v Nieves, 2NY3d 310, 315-317 [2004]; People v Tidd [appeal No. 2], 81 AD3d 1405 [2011]),the review of which would be encompassed by the waiver of the right to appeal (seeLopez, 6 NY3d at 255). Nevertheless, we reject defendant's contention with respect to theseverity of the order of protection, taking into account the fact that the length of the order ofprotection will be modified upon remittal. Present—Smith, J.P., Fahey, Peradotto, Lindleyand Martoche, JJ.