Opinion
No. KA 07-01189.
October 3, 2008.
Appeal from a judgment of the Supreme Court, Erie County (Patrick M. Carney, A.J.), rendered February 22, 2007. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the second degree. Defendant pleaded guilty in Supreme Court, Erie County (Amy J. Fricano, J.).
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF COUNSEL), FOR RESPONDENT.
Before: Martoche, J.P., Lunn, Fahey and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by providing that the order of protection shall expire on September 18, 2011 and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25), defendant contends that Supreme Court erred in setting the expiration date of the order of protection from the date of sentencing rather than from the date of conviction. Although that contention survives the valid waiver by defendant of the right to appeal ( see People v Fomby, 42 AD3d 894, 896), he failed to preserve it for our review ( see People v Nieves, 2 NY3d 310, 315-317). Nevertheless, we exercise our power to review defendant's contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]; People v Chattley, 49 AD3d 1307), and we modify the judgment by providing that the order of protection shall expire on September 18, 2011.