| People v Collins |
| 2014 NY Slip Op 03373 [117 AD3d 1535] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Larry Collins, Jr., Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
Larry Collins, Jr., defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered November 18, 2011. The judgment convicted defendant, upon his plea ofguilty, of attempted burglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2]), defendant contends that the order of protection issued in conjunction withsentencing is invalid because it exceeds the maximum permissible duration of such anorder under the version of CPL 530.13 in effect when he was sentenced. Although thatcontention survives defendant's valid waiver of the right to appeal (see People v Ouchie, 59 AD3d926, 926 [2009]; People v Holmes, 294 AD2d 871, 872 [2002], lv denied98 NY2d 730 [2002]), defendant did not object to the duration of the order ofprotection at sentencing and therefore failed to preserve his contention for our review (see People v Nieves, 2 NY3d310, 316-317 [2004]; People v Tidd [appeal No. 2], 81 AD3d 1405, 1406[2011]). In any event, defendant's contention is without merit inasmuch as, whendefendant was sentenced on November 18, 2011, CPL 530.13 former (4) provided inrelevant part that the maximum duration of an order of protection was eight years fromthe end of any determinate term of incarceration actually imposed.
Defendant further contends that the order of protection should be vacated becauseSupreme Court failed to articulate its reasons for issuing it. "Even assuming, arguendo,that defendant's contention survives the plea and the valid waiver of the right to appeal. . . , we conclude that it is not preserved for our review inasmuch asdefendant failed to object to the order of protection at sentencing" (People v Kulyeshie, 71 AD3d1478, 1479 [2010], lv denied 14 NY3d 889 [2010]; see Nieves, 2NY3d at 316-317). We decline to exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Contrary to the contention of defendant in his pro se supplemental brief, the court didnot err in resentencing him, inasmuch as the court thereby acted within its inherent powerto correct an illegal sentence (see People v McCoy, 98 AD3d 1135, 1136 [2012], lvdenied 20 NY3d 933 [2012]; see generally People v DeValle, 94 NY2d 870,871-872 [2000]). Here, the record establishes that the court initially directed thatdefendant's sentence be served concurrently with his unexpired parole time. Afterrealizing that concurrent sentences were illegal in that situation (see Penal Law§ 70.25 [2-a]), the court resentenced defendant on the same day, directingthat the sentence be served consecutively to the unexpired part of his prior sentence. Wehave considered the remaining contentions in defendant's pro se supplemental brief andconclude that they are without merit. Present—Smith, J.P., Fahey, Peradotto, Carniand Sconiers, JJ.