Opinion
06-09-2017
The PEOPLE of the State of New York, Respondent, v. James LOPEZ, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND SCUDDER, JJ.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of intimidating a victim or witness in the third degree (Penal Law § 215.15 [1 ] ) and endangering the welfare of a child (§ 260.10 [1] ). Although we agree with defendant that his waiver of the right to appeal is invalid because "the minimal inquiry made by County Court was insufficient to establish that the court engage[d] ... defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" (People v. Jones, 107 A.D.3d 1589, 1589, 966 N.Y.S.2d 724, lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [internal quotation marks omitted]; see People v. Brown, 148 A.D.3d 1562, 1562, 48 N.Y.S.3d 865 ), we nevertheless reject defendant's challenge to the severity of the sentence.
Even a valid waiver of the right to appeal would not encompass defendant's further contention that the court erred in setting the expiration date of the order of protection (see People v. Cameron, 87 A.D.3d 1366, 1366, 929 N.Y.S.2d 904 ; People v. Allen, 64 A.D.3d 1190, 1191, 882 N.Y.S.2d 783, lv. denied 13 N.Y.3d 794, 887 N.Y.S.2d 543, 916 N.E.2d 438 ). Although defendant failed to preserve his contention for our review (see People v. Nieves, 2 N.Y.3d 310, 315–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 ), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ). Inasmuch as we agree with defendant that the court erred in setting the expiration date of the order of protection (see People v. Mingo, 38 A.D.3d 1270, 1271, 832 N.Y.S.2d 721 ), we modify the judgment by amending the order of protection, and we remit the matter to County Court to determine the jail time credit to which defendant is entitled and to specify an expiration date in accordance with CPL 530.13(4)(A) (see People v. Richardson, 143 A.D.3d 1252, 1255, 38 N.Y.S.3d 674, lv. denied 28 N.Y.3d 1150, 52 N.Y.S.3d 301, 74 N.E.3d 686 ).
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 amending the order of protection and as modified the judgment is affirmed, and the matter is remitted to Onondaga County Court for further proceedings.