| People v Surdis |
| 2018 NY Slip Op 02843 [160 AD3d 1305] |
| April 26, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kristofer J. Surdis, Also Known as Kristopher Surdis,Appellant. |
John Ferrara, Monticello, for appellant.
D. Holley Carnright, District Attorney, Kingston (Carly Wolfrom of counsel), forrespondent.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), renderedSeptember 29, 2016, convicting defendant upon his plea of guilty of the crime of falselyreporting an incident in the first degree.
Defendant was charged with falsely reporting an incident in the first degree for calling in abomb threat to a grocery store while he was incarcerated on another conviction for the samecrime. Pursuant to a plea agreement that included a waiver of appeal, defendant waivedindictment and pleaded guilty as charged in a superior court information to one count of falselyreporting an incident in the first degree. The terms of the agreement provided that the guilty pleasatisfied numerous pending charges in Ulster County, including four separate charges of makinga terroristic threat and three charges of aggravated harassment. Defendant signed a written waiverof appeal and was sentenced, consistent with the agreement, as an admitted second violent felonyoffender to a seven-year prison term followed by five years of postrelease supervision(hereinafter PRS). The sentence was ordered to run concurrently with the prison term he was thenserving, and orders of protection were issued. Defendant now appeals.
Defendant argues that the five-year period of postrelease supervision was unlawful. Whilethis challenge to the legality of the sentence survives his unchallenged waiver of appeal (see People v Blair, 140 AD3d1478, 1479 [2016], lv denied 28 NY3d 927 [2016]), it is incorrect. Defendantpleaded guilty to falsely reporting an incident in the first degree, a class D violent felony offense(see Penal Law §§ 70.02 [1] [d]; 240.60 [1]). The People filed apredicate [*2]violent felony offender statement, and defendantadmitted that he was a second violent felony offender based upon a 2008 conviction for the samecrime (see Penal Law § 70.04; see also People v Surdis, 77 AD3d 1018 [2010], lv denied16 NY3d 800 [2011]). Accordingly, as defendant was properly sentenced as a second violentfelony offender, a determinate sentence was required (see Penal Law§§ 60.05 [6]; 70.04 [2], [3]), with a mandatory five-year period of PRS(see Penal Law §§ 70.00 [6]; 70.45 [2]). Contrary to his claim, he wasnot entitled to the lesser period of PRS authorized for first-time violent felony offenders(see Penal Law §§ 70.02 [3] [c]; 70.45 [2] [e]).
Defendant further contends that the duration of the orders of protection exceeds themaximum permitted by law. County Court stated at sentencing that the orders would expire onSeptember 29, 2030, but set the expiration date of the orders as September 29, 2036. Initially, asthe duration of the orders was first discussed at sentencing, after the appeal waiver, this claimsurvives that waiver (see People vClark, 155 AD3d 1184, 1185 [2017]). While this issue must ordinarily be preserved byan objection at or before sentencing, the record does not reflect that the 2036 expiration date onthe orders was disclosed to defendant or counsel at sentencing, or that any of the parties wereaware of the date discrepancy; thus, defendant had no practical ability to object and preservationwas not required (see People vWilliams, 27 NY3d 212, 221 [2016]; People v Clark, 155 AD3d at 1185). Asrelevant here, the expiration date of an order of protection for a felony conviction may be thegreater of "eight years from the date of [the] sentencing" or "eight years from the date of theexpiration of . . . the term of a determinate sentence of imprisonment actuallyimposed" (CPL 530.13 [4]). Using the date of sentencing, the orders could expire no later thanSeptember 29, 2024. However, using the maximum expiration date of the determinatesentence—which includes both the prison term and the period of PRS (see People v Williams, 19 NY3d100, 101-102, 104 [2012])—the orders could expire in 2036 (prison sentence imposedin 2016 of seven years followed by five years of PRS equals 2028, plus eight years). Sincedefendant does not contend that he was entitled to more jail time credit or that he would havemoved to vacate his plea had he known that the orders would expire in 2036, we discern no basisupon which to disturb the authorized expiration dates of the orders of protection.
Garry, P.J., Egan Jr., Lynch, Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.