| People v Hopper |
| 2014 NY Slip Op 08677 [123 AD3d 1234] |
| December 11, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJason C. Hopper, Appellant. |
John P.M. Wappett, Public Defender, Lake George (Marcy I. Flores of counsel), forappellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Lynch, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered October 3, 2012, convicting defendant upon his plea of guilty of the crimesof attempted strangulation in the second degree and criminal contempt in the seconddegree.
As the result of a domestic dispute, defendant was charged in an indictment with anumber of crimes. In satisfaction of the indictment, he pleaded guilty to attemptedstrangulation in the second degree, a class E felony, and criminal contempt in the seconddegree, a class A misdemeanor. In addition, he waived his right to appeal and consentedto the entry of an order of protection in favor of his wife and young child. In accordancewith the plea agreement, he was sentenced on October 3, 2012 to 1
Defendant contends that the duration of the order of protection exceeded thestatutorily authorized time period (see CPL 530.12 [5]) and failed to take intoaccount his jail time credit. Although not precluded by his waiver of the right to appeal,defendant has not preserved this challenge due to his failure to raise it before CountyCourt (see People v Sharp,104 AD3d 1325, 1327 [2013], lv denied 21 NY3d 1009 [2013]; People v Crowley, 34 AD3d866, 867 [2006], lv [*2]denied 7 NY3d 924[2006]). Nevertheless, under the circumstances presented, we will exercise our discretionto modify the judgment in the interest of justice (see People v Sharp, 104 AD3dat 1327; People v Crowley, 34 AD3d at 867; see also CPL 470.15 [6][a]).
CPL 530.12 (5) provides, in relevant part, that the duration of an order of protection"shall be fixed by the court and: (A) in the case of a felony conviction, shall not exceedthe greater of: (i) eight years from the date of such sentencing, or (ii) eight years from thedate of the expiration of the maximum term of an indeterminate or the term of adeterminate sentence of imprisonment actually imposed." Contrary to defendant's claim,the expiration date of the order of protection was in compliance with the statute insofaras October 3, 2024 was eight years from October 3, 2016, the expiration of the maximumterm of defendant's indeterminate prison term. The People, however, concede thatdefendant's jail time credit of 239 days was not taken into account in calculating theexpiration date as it should have been (see People v DeFazio, 105 AD3d 1438, 1439 [2013], lvdenied 21 NY3d 1015 [2013]; People v Nugent, 31 AD3d 976, 978 [2006], lvdenied 8 NY3d 925 [2007]). In view of this, the matter must be remitted to CountyCourt for a new determination with respect to the expiration date of the order ofprotection.
Peters, P.J., Rose and Egan Jr., JJ., concur. Ordered that the judgment is modified, asa matter of discretion in the interest of justice, by reversing so much thereof as fixed theduration of the order of protection; matter remitted to the County Court of WarrenCounty for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.