Opinion
No. KA 06-02155.
March 14, 2008.
Appeal from a judgment of the Supreme Court, Erie County (Amy J. Fricano, J.), rendered July 20, 2006. The judgment convicted defendant, upon a jury verdict, of reckless endangerment in the second degree and unlawful imprisonment in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C. RUSSO-MC LAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Martoche, Lunn, Green and Gorski, 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 May 18, 2009 and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of reckless endangerment in the second degree (Penal Law § 120.20) and unlawful imprisonment in the second degree (§ 135.05). Contrary to defendant's contentions, the conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495). Although defendant has not preserved his contention that the duration of the order of protection was improper ( see People v Nieves, 2 NY3d 310, 315-317; People v Heise, 41 AD3d 1255, lv denied 9 NY3d 1006), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). At the time of defendant's conviction, an order of protection could not exceed three years from the date of conviction ( see CPL 530.13 [former (4)]). Supreme Court improperly set the order of protection to expire three years after the date of sentencing, July 20, 2006, rather than three years after the date of the conviction, May 18, 2006. We therefore modify the judgment by providing that the order of protection shall expire on May 18, 2009.
Finally, defendant failed to preserve for our review his contention that the verdict is repugnant ( see People v Alfaro, 66 NY2d 985, 987), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]).