| People v Rawson |
| 2015 NY Slip Op 01033 [125 AD3d 1323] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Donald Rawson, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Genesee County (Eric R. Adams,A.J.), rendered July 24, 2013. The judgment convicted defendant, upon his plea of guilty,of criminal contempt in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of criminal contempt in the second degree (Penal Law § 215.50 [3]).We agree with defendant that he did not knowingly, voluntarily, and intelligently waivehis right to appeal. "Despite the existence of a written appeal waiver form signed bydefendant and his attorney, no questions were asked of defendant about the appealwaiver and his understanding thereof" (People v Frysinger, 111 AD3d 1397, 1398 [2013]; see People v Jones, 118 AD3d1354, 1354 [2014], lv denied 24 NY3d 961 [2014]; cf. People v Griffin, 120 AD3d1569, 1569-1570 [2014]). We reject defendant's contention that the three-yearperiod of probation is illegal because Supreme Court directed that the period wouldexpire three years after the date of sentencing, without taking into account the three daysdefendant served in jail prior to sentencing. Where, as here, there is a split sentence ofincarceration and probation, jail time credit must be applied to reduce both the sentenceof incarceration and the term of probation (see People v Zephrin, 14 NY3d 296, 300 [2010]). Thethree-year period of probation therefore will be reduced automatically by the jail timecredit (see generally Penal Law § 70.30 [3]; Zephrin, 14NY3d at 301; People vWhite, 79 AD3d 1160, 1161 [2010]). The sentence is not unduly harsh orsevere. Finally, defendant's contention that certain provisions in the order of protectionand terms of probation unduly limit his freedom of speech is not preserved for our review(see CPL 470.05 [2]; seegenerally Matter of Gracie C. v Nelson C., 118 AD3d 417, 417 [2014]), and wedecline to exercise our power to review it as a matter of discretion in the interest ofjustice (see CPL 470.15 [3] [c]). Present—Centra, J.P., Peradotto, Lindley,Sconiers and DeJoseph, JJ.