| People v Richardson |
| 2015 NY Slip Op 09755 [134 AD3d 1566] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJermaine Richardson, Appellant. (Appeal No. 1.) |
James S. Kernan, Public Defender, Lyons (Robert Tucker of counsel), fordefendant-appellant.
Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.),rendered August 12, 2014. The judgment convicted defendant, upon his plea of guilty, ofcriminal contempt 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 to expire on April 8, 2025, and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty,of criminal contempt in the first degree (Penal Law § 215.51 [c]), defendantcontends that County Court erred in issuing a no-contact order of protection on behalf ofthe victim, who stated at sentencing that she wanted only a no-offensive-contact order ofprotection. We reject that contention. The sentencing court had authority to issue anorder of protection, and set the terms thereof, even "in the absence of the victim'sconsent" (People v Lilley,81 AD3d 1448, 1448 [2011], lv denied 17 NY3d 860 [2011]; see People v Paul, 117 AD3d1499, 1499-1500 [2014]; People v Monacelli, 299 AD2d 916, 916 [2002],lv denied 99 NY2d 617 [2003]).
We agree with defendant, however, that the court, in setting the expiration date of theorder of protection, erred in failing to take into account the time he had served in jailprior to sentencing (see People vDeFazio, 105 AD3d 1438, 1439 [2013], lv denied 21 NY3d 1015[2013]; People v Goins, 45AD3d 1371, 1372 [2007]). Although defendant failed to preserve for our review hiscontention concerning the expiration date of the order of protection (see People v Nieves, 2 NY3d310, 315-316 [2004]), we exercise our power to review it as a matter of discretion inthe interest of justice (see CPL 470.15 [3] [c]; People v Clinkscales, 35 AD3d1266, 1267 [2006]). The People correctly concede that the order of protectionshould expire on April 8, 2025, rather than August 12, 2025, as set by the court, and wetherefore modify the judgment accordingly. Present—Smith, J.P., Peradotto,Lindley, Whalen and DeJoseph, JJ.