| People v Clark |
| 2017 NY Slip Op 07886 [155 AD3d 1184] |
| November 9, 2017 |
| Appellate Division, Third Department |
[*1](November 9, 2017)
| The People of the State of New York,Respondent, v Roosevelt Clark, Appellant. |
Gail B. Rubenfeld, Monticello, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Motion for reargument. Upon the papers filed in support of the motion and the papers filed inopposition thereto, it is ordered that the motion is granted and the memorandum and orderdecided and entered May 18, 2017 (150 AD3d 1475 [2017]) is vacated and the followingmemorandum and order is substituted therefor.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), renderedSeptember 13, 2013, convicting defendant upon his plea of guilty of the crime of aggravatedcriminal contempt.
In satisfaction of an eight-count indictment stemming from his violation of an order ofprotection on several occasions, defendant pleaded guilty to aggravated criminal contempt ascharged in the first count. Pursuant to the plea agreement, defendant waived his right to appealduring the plea allocution and signed a written waiver of appeal. County Court thereafterimposed the agreed-upon sentence of five years of probation, the first six months to be served injail, and issued a full stay-away order of protection in favor of the victim in effect untilSeptember 13, 2021. Defendant appeals.
Defendant argues that the eight-year duration of the permanent order of protection exceedsthe maximum duration then permitted, and that County Court further incorrectly calculated theexpiration date of the order by failing to take into consideration the jail time credit to which he isentitled (see Penal Law § 70.30 [3]). Because the duration of the order ofprotection was not disclosed prior to defendant executing the waiver of appeal, this claimsurvives the appeal waiver (see People vBelile, 137 AD3d 1460, 1462 [2016]; People v Loffler, 111 AD3d 1059, 1060 [2013]). Ordinarily, thisclaim, which does not implicate the legality of the sentence, must be preserved by an objection ator before sentencing (see People vNieves, 2 NY3d 310, 316-317 [2004]; People v Belile, 137 AD3d at 1462).Here, however, the record does not reflect that the duration of the order was disclosed todefendant or to defense counsel at any point prior to or during sentencing. As such, defendanthad no practical ability to register a [*2]timely objection to theduration of the order and, accordingly, preservation was not required (see generally People v Williams, 27NY3d 212, 221 [2016]; People vConceicao, 26 NY3d 375, 381-382 [2015]).
With regard to the duration of the order of protection, we disagree with defendant's assertionthat eight years was not permitted under the Criminal Procedure Law at the time he wassentenced (see CPL former 530.13 [4] [A] [i]; L 2013, ch 55, § 1, part E,§ 19; L 2011, ch 9, § 3). To the extent that defendant seeks acorrection of the expiration date of the order of protection to factor in his jail time credit(see Penal Law § 70.30 [3]), this claim was not preserved due to his failureto request this relief at sentencing, despite an opportunity to do so and an awareness that he hadbeen in jail prior to sentencing and would be entitled to receive jail time credit (see People vBelile, 137 AD3d at 1462; People vGardner, 129 AD3d 1386, 1387-1388 [2015]). Given the failure to raise this issue inCounty Court, a record was not made of the precise jail time credit to which defendant is entitled(see People v Gardner, 129 AD3d at 1388) and, as defendant may address this issuebefore County Court, we decline to exercise our interest of justice jurisdiction to modify theorder in this regard (see CPL 470.15 [6] [a]; People v Belile, 137 AD3d at1462).
Peters, P.J., McCarthy, Garry, Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed.