| People v Gardner |
| 2015 NY Slip Op 05521 [129 AD3d 1386] |
| June 25, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Gardner, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Clark, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered January 7, 2014, convicting defendant upon his plea of guilty of the crimeof burglary in the second degree.
In satisfaction of charges contained in three felony complaints stemming from tworesidential burglaries and defendant's possession of a small amount of heroin, defendantwaived indictment and pleaded guilty to burglary in the second degree as charged in asuperior court information. Pursuant to the plea agreement, which included an appealwaiver, defendant was sentenced to a six-year prison term, followed by five years ofpostrelease supervision, and orders of protection and restitution orders were issued.Defendant appeals.
Initially, defendant argues that the expiration dates of the orders of protection werecalculated incorrectly in that County Court did not take into consideration the jail timecredit to which he is entitled for the reported 13 months that he was in jail before hebegan this sentence.[FN1] [*2]Since the duration of the orders of protection was firstdisclosed at sentencing after defendant executed a waiver of appeal at the pleaproceedings, this claim survives the appeal waiver (see People v Crowley, 34 AD3d 866, 867 [2006], lvdenied 7 NY3d 924 [2006]). However, this challenge to the orders of protection,which does not implicate the legality of the sentence, is unpreserved due to defendant'sfailure to raise it at sentencing (see People v Nieves, 2 NY3d 310, 316-317 [2004]; People v Shaver, 92 AD3d978, 979 [2012], lv denied 18 NY3d 998 [2012]). We decline to exercise ourinterest of justice jurisdiction to modify the judgment (see CPL 470.15 [6] [a]; People v Loffler, 111 AD3d1059, 1060 [2013]) because defendant and his counsel, aware that he had beenincarcerated for a lengthy period of time and would receive jail time credit, should haveraised this issue at sentencing. Such practice would have allowed "defendant to returnafter [the Department of Corrections and Community Supervision] calculated his jailtime credit so that the orders could be amended to reflect changes in defendant's releasedate, if appropriate" (People v Nieves, 2 NY3d at 318).[FN2] Moreover, as the People point out,were we to exercise our discretion, we would be required to remit the matter becausedefendant did not make a record and we are unable to ascertain the precise amount of jailtime credit to which he is entitled (see People v Shaver, 92 AD3d at 979).
Defendant also challenges the amount of restitution ordered as unsupported by therecord. Given that the plea agreement contemplated restitution but did not specify theamount to be awarded, this challenge is not precluded by the appeal waiver (see People v Leone, 101 AD3d1352, 1353 [2012], lv denied 21 NY3d 913 [2013]; People v Smith, 100 AD3d1102, 1102 [2012]). While the claim was not preserved for our review inasmuch asdefendant did not request a hearing or otherwise challenge the amount awarded at thetime of sentencing (see id.; see also People v Horne, 97 NY2d 404, 414 n3 [2002]), we deem it "appropriate to exercise our discretion to take corrective action inthe interest of justice" (People vLyman, 119 AD3d 968, 970 [2014]). At sentencing, the People stated thatrestitution would total $2,379.30, which the court indicated would be imposed in twoorders. However, the record contains three restitution orders totaling over $6,000 and theuniform sentence and commitment form reflects restitution of $4,006. Further, the recordlacks documentation to support the restitution award of $2,163 to one of the victimswhile the third restitution order for $1,843 appears to relate to that victim's insurer.However, the record does not reflect if the claim was ever paid or if it may duplicate thevictim's [*3]award.[FN3] In light of the foregoing, the mattermust be remitted for a restitution hearing or redetermination of restitution (seePenal Law § 60.27 [2]; CPL 400.30). Defendant's remaining challenge tothe waiver of appeal is rendered academic.
Lahtinen, J.P., Lynch and Devine, JJ., concur. Ordered that the judgment is modified,as a matter of discretion in the interest of justice, by reversing so much thereof as orderedrestitution; matter remitted to the County Court of Ulster County for further proceedingsnot inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1:As relevant here, theduration of the orders of protection cannot exceed "eight years from the date of theexpiration of the . . . term of a determinate sentence of imprisonmentactually imposed" (CPL 530.13 [4] [A] [ii]), including postrelease supervision (see People v Lancaster, 121AD3d 1301, 1305 [2014], lv denied 24 NY3d 1121 [2015]). Defendant's11-year sentence—six years in prison plus five years of postreleasesupervision—combined with the eight years allowed by statute permitted anexpiration date of 2033. Factoring in the jail time credit for time served while the actionwas pending would result in his release from jail earlier than the sentencing courtexpected, requiring that the orders of protection be adjusted so as not to exceed thatmaximum 19 years (see Peoplev Nieves, 2 NY3d 310, 313 [2004]).
Footnote 2:As the Court of Appealshas directed, "[b]ecause sentencing courts are in the best position to amend permanentorders of protection, the better practice—and best use of judicialresources—is for a defendant seeking adjustment of such an order to request relieffrom the issuing court in the first instance, resorting to the appellate courts only ifnecessary" (People v Nieves, 2 NY3d at 317; see People v Crowley, 34AD3d at 868).
Footnote 3:The "conference flowsheet" to which reference was made at the plea proceedings is not in the record onappeal.