| People v DeFazio |
| 2013 NY Slip Op 02938 [105 AD3d 1438] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vKenneth J. DeFazio, Jr., Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.),rendered April 28, 2009. The judgment convicted defendant, upon his plea of guilty, ofcourse of sexual conduct against a child in the first 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 amending the order ofprotection and as modified the judgment is affirmed, and the matter is remitted toMonroe County Court for further proceedings.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcourse of sexual conduct against a child in the first degree (Penal Law § 130.75 [1][b]), defendant initially contends that his waiver of the right to appeal was notknowingly, voluntarily and intelligently entered due to his mental limitations. We rejectthat contention. "Although the record indicates that defendant had [learning disabilities],[t]here was not the slightest indication that defendant was uninformed, confused orincompetent when he" waived his right to appeal (People v Nudd, 53 AD3d 1115, 1115 [2008], lvdenied 11 NY3d 834 [2008] [internal quotation marks omitted]). Furthermore, therecord establishes that defendant "understood that the right to appeal is separate anddistinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d248, 256 [2006]), and that he voluntarily waived the right to appeal (see People v Tantao, 41 AD3d1274, 1275 [2007], lv denied 9 NY3d 882 [2007]). Defendant's valid waiverof the right to appeal forecloses his challenge to the severity of the sentence (seeLopez, 6 NY3d at 255-256; see generally People v Lococo, 92 NY2d 825,827 [1998]; People v Hidalgo, 91 NY2d 733, 737 [1998]).
Defendant further contends that, in setting the duration of the orders of protection,County Court erred in failing to take into account the jail time credit to which he isentitled. Although that contention is not foreclosed by the valid waiver of the right toappeal (see People v Victor,20 AD3d 927, 928 [2005], lv denied 5 NY3d 833 [2005], 5 NY3d 885[2005]), defendant failed to preserve it for our review (see People v Nieves, 2 NY3d310, 315-317 [2004]). We nevertheless exercise our power to review defendant'scontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]), and we agree with defendant that the court failed to consider the jail time credit towhich he is entitled (see Peoplev Goins, 45 AD3d 1371, 1372 [2007]). Consequently, the court erred in its[*2]determination of the maximum expiration date of theorder of protection inasmuch as the duration of that order exceeds eight years from thedate of expiration of the maximum term of the determinate sentence of imprisonment thatwas imposed (see CPL 530.12 [5]). We therefore modify the judgment byamending the order of protection, and we remit the matter to County Court to determinethe jail time credit to which defendant is entitled and to specify in the order of protectionan expiration date in accordance with CPL 530.12 (5). Present—Smith, J.P.,Fahey, Peradotto, Lindley and Whalen, JJ.