| People v Springer |
| 2013 NY Slip Op 01573 [104 AD3d 794] |
| March 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Springer, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and LindaBreen of counsel; David Xu on the memorandum), for respondent.
Appeal by defendant from a judgment of the Supreme Court, Kings County (Chun,J.), rendered April 20, 2011, convicting him of attempted murder in the second degree,upon his plea of guilty, and imposing sentence. The appeal brings up for review an orderof protection issued at the time of sentencing.
Ordered that upon the appeal from the judgment, so much of the order of protectionas directed that it remain in effect until April 20, 2031, is vacated, on the law, and thematter is remitted to the Supreme Court, Kings County, for a new determination of theduration of the order of protection, taking into account the maximum time allowed forthe duration of an order of protection pursuant to the law in effect at the time of theoffense and the defendant's jail-time credit; and it is further,
Ordered that the judgment is affirmed.
A defendant who has validly waived the right to appeal cannot invoke this Court'sinterest of justice jurisdiction to obtain a reduced sentence (see People v Lopez, 6 NY3d248, 255 [2006]). Here, however, the Court is not precluded from exercising itsinterest of justice jurisdiction because the defendant's purported waiver of his right toappeal was invalid. The record does not demonstrate that the defendant "grasped theconcept of the appeal waiver and the nature of the right he was forgoing" (People v Bradshaw, 18 NY3d257, 267 [2011]; seePeople v Grant, 83 AD3d 862, 862-863 [2011]; cf. People v Ramos, 7 NY3d737, 738 [2006]). Therefore, "notwithstanding the written appeal waiver form, itcannot be said that defendant knowingly, intelligently and voluntarily waived his right toappeal" (People v Bradshaw, 18 NY3d at 267; see People v Elmer, 19 NY3d501, 510 [2012]; People vVasquez, 101 AD3d 1054, 1055 [2012]).
Nevertheless, the sentence imposed was not excessive (see People v Suitte,90 AD2d 80 [1982]).
As correctly argued by the defendant and conceded by the People on appeal, the[*2]duration of the order of protection issued at the timeof sentencing failed to take into account the defendant's jail-time credits and exceededthe maximum time limit of CPL 530.13 (4). Accordingly, the matter must be remitted tothe Supreme Court, Kings County, for a new determination of the duration of the orderof protection, taking into account the maximum time allowed for the duration of an orderof protection pursuant to the law in effect at the time of the offense and the defendant'sjail-time credit (see People vVasquez, 87 AD3d 1042, 1044 [2011]). Eng, P.J., Mastro, Dillon, Lott andMiller, JJ., concur.
[Recalled and vacated, see 109 AD3d 557.]