| People v Kalb |
| 2012 NY Slip Op 00631 [91 AD3d 1359] |
| January 31, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Christopher Kalb, Appellant. |
[*1]Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered April 14,2010. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree,criminal possession of a weapon in the third degree, criminal contempt in the first degree andintimidating a victim or witness in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by providing that the order ofprotection shall expire on March 9, 2029, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, burglary in the second degree (Penal Law 140.25 [2]). Defendant contends that CountyCourt's handling of a jury note violated the requirements set forth in CPL 310.30 and People vO'Rama (78 NY2d 270 [1991]), inasmuch as he was denied the opportunity to have meaningfulinput or time to fashion an appropriate response to the note. We conclude that defendant failed topreserve his contention for our review. The record establishes that defendant, defense counseland the prosecutor knew the contents of the brief note, which only requested additionalinstructions on the elements of the charged offenses. Further, it is apparent from the record thatdefendant and defense counsel were present throughout the proceedings and that no objection orrequest was made with respect to the content of the note or the manner in which the courtresponded to it. Thus, unlike O'Rama (78 NY2d at 278-279), this is not a case where there was "afailure to provide [defense] counsel with meaningful notice of the contents of the jury note or anopportunity to respond" (People v Kadarko, 14 NY3d 426, 429 [2010]), and defendant thereforewas required to preserve his contention for our review (see People v Starling, 85 NY2d 509, 516[1995]).
Defendant further contends that the court erred in fixing the duration of the order ofprotection. Although defendant failed to preserve that contention for our review (see People vNieves, 2 NY3d 310, 315-317 [2004]), we nevertheless exercise our power to review it as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). The court sentenceddefendant to a determinate term of imprisonment of 12 years for burglary in the second degreeand to indeterminate terms of imprisonment of 2 to 4 years for criminal contempt in the firstdegree (Penal Law 215.51 [b] [iii])[*2] and intimidating a victim or witness in the third degree (215.15 [1]). The order of protection expires on March 9, 2033, which is eight years after theexpiration of the determinate sentence and the indeterminate sentences, which were to runconcurrently to each other and consecutively to the determinate sentence. The version of CPL530.13 (4) (A) (ii) in effect at the time the judgment was rendered provided that the duration ofan order of protection entered with respect to a felony conviction shall not exceed "eight yearsfrom the date of the expiration of the maximum term of an indeterminate or the term of adeterminate sentence of imprisonment actually imposed" (emphasis added). Thus, the statutepermits the order of protection to run, at most, eight years from the end of the term of the longestsentence imposed for the counts upon which the order of protection was based, i.e., thedeterminate term imposed for the burglary count (see People v Jackson, 85 AD3d 1697, 1699[2011], lv denied 17 NY3d 817 [2011]). We therefore modify the judgment by providing that theorder of protection shall expire on March 9, 2029 (see People v Cameron, 87 AD3d 1366[2011]).
Defendant failed to preserve for our review his contentions concerning an exhibit that wasinadvertently provided to the jury, one of his statements that was not included in the People'sCPL 710.30 notice and alleged prosecutorial misconduct (see CPL 470.05 [2]). We decline toexercise our power to review them as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). We have reviewed defendant's remaining contentions and conclude that they arewithout merit. Present Smith, J.P., Fahey, Carni, Sconiers and Gorski, JJ.