| People v Chambers |
| 2019 NY Slip Op 07920 [177 AD3d 645] |
| November 6, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v James Chambers, Appellant. |
Mark Diamond, New York, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jill Oziemblewskiand William C. Milaccio of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Michael A. Martinelli, J.), rendered September 6, 2018, convicting him of attemptedburglary in the third degree, upon his plea of guilty, and imposing sentence. The appealbrings up for review an order of protection dated September 6, 2018, issued at the timeof sentencing.
Ordered that upon the appeal from the judgment, so much of the order of protectiondated September 6, 2018, as directed that it remain in effect until September 6, 2029, lessthe defendant's jail-time credit, to be computed by the applicable department ofcorrection, is vacated, on the law and as a matter of discretion in the interest of justice,and the matter is remitted to the County Court, Westchester County, for a newdetermination of the duration of the order of protection, consistent herewith; and it isfurther,
Ordered that the judgment is affirmed.
The defendant's challenge to the factual sufficiency of his plea allocution isunpreserved for appellate review (see CPL 470.05 [2]; People v Lopez,71 NY2d 662, 665 [1988]). Contrary to the defendant's contention, the exception to thepreservation requirement does not apply here because the defendant's allocution did notcast significant doubt on his guilt, negate an essential element of the crime, or call intoquestion the voluntariness of his plea (see People v Lopez, 71 NY2d at 666). Inany event, the facts the defendant admitted during his plea allocution were sufficient toestablish the elements of the crime of attempted burglary in the third degree (Penal Law§§ 140.20, 110.00).
The defendant's further contention that he did not knowingly, voluntarily, andintelligently plead guilty because the County Court did not inform him of theramifications of the final order of protection issued upon sentencing is unpreserved forappellate review (see CPL 470.05 [2]). In any event, the contention is withoutmerit, since the order of protection was not part of the sentence imposed, and could beentered independently of the plea agreement (see People v Margillo, 69 AD3d 655, 656 [2010]; see generally People v Nieves,2 NY3d 310, 316 [2004]).
The defendant's contention that the County Court effectively failed to fix theduration of the order of protection is unpreserved for appellate review (see CPL470.05 [2]; People v Nieves, 2 NY3d at 316), but we nevertheless reach the issuein the exercise of our interest of justice jurisdiction. With exception not relevant here,CPL 530.13 authorizes a court, upon sentencing on a conviction for any offense, to enteran order of protection, inter alia, directing a defendant to stay away from the victims ofthe offense (see CPL 530.13 [4]). The statute provides, in relevant part, that inthe case of a felony conviction, the duration of the order of protection "shall not exceedthe greater of: (i) eight years from the date of such sentencing . . . or (ii)eight years from the date of the expiration of the maximum term of an indeterminate. . . sentence of imprisonment actually imposed" (id.). Here, inissuing the order of protection, the court calculated that 8 years after the expiration of the3-year maximum term of the defendant's indeterminate sentence would be September 6,2029. However, in recognition that the defendant's release from prison might occurearlier than expected once any jail-time credit was calculated, the court set the expirationdate in the order as "September 6, 2029 less the defendant's jail-time credit, which is tobe computed by the applicable department of correction."
By virtue of that provision, the County Court effectively failed to set a definiteexpiration date, and thus, duration, for the order of protection. The court thereby violatedthe statutory directives that the duration of an order of protection "shall be fixed by thecourt" (CPL 530.13 [4]) and that "[a]n order of protection . . . shall plainlystate the date that such order expires" (CPL 530.13 [5]). The Court of Appeals hasacknowledged that "it is imperative that orders of protection contain specific and correctexpiration dates to provide certainty for defendants, the protected victims and witnesses,and law enforcement authorities who may be called to enforce them" (People vNieves, 2 NY3d at 317). The order of protection in this case fails to provide therequisite certainty. The Court of Appeals has also recognized that, in calculating theduration of an order of protection, "[a] sentencing court cannot predict the extent ofallowable jail time credit before such calculations are made" (id.). The Courtsuggested a procedure to manage that issue. Specifically, it instructed that the issuingcourt could retain jurisdiction over the matter, and that defendants could subsequentlyseek adjustment of the duration of an order of protection by requesting that relief fromthe issuing court (see id.). Whether or not that procedure is followed, the issuingcourt cannot resolve the issue of possible jail-time credit as the County Court did here, byfailing to set forth any definite expiration date for the order of protection (seeCPL 530.13 [4]).
Accordingly, we vacate so much of the order of protection dated September 6, 2018,as directed that it remain in effect until September 6, 2029, less the defendant's jail-timecredit, to be computed by the applicable department of correction, and remit the matter tothe County Court, Westchester County, for a new determination of the duration of theorder of protection.
The defendant's remaining contention is unpreserved for appellate review, and, inany event, without merit. Balkin, J.P., Cohen, Miller and Duffy, JJ., concur.