Opinion
KA 17–00491 343
03-22-2019
The PEOPLE of the State of New York, Respondent, v. Russell MERCHANT, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. McDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. McDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
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 to expire on March 26, 2034, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sexual act in the third degree ( Penal Law § 130.40[2] ). Even assuming, arguendo, that the waiver of the right to appeal is invalid and thus does not preclude our review of defendant's challenge to the severity of his sentence (see People v. Johnson , 161 A.D.3d 1529, 1529, 73 N.Y.S.3d 921 [4th Dept. 2018] ), we conclude that the sentence is not unduly harsh or severe.
We agree with defendant that County Court erred in setting the expiration date of the order of protection. Although defendant failed to preserve that contention for our review (see People v. Nieves , 2 N.Y.3d 310, 315–316, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ; People v. Lopez , 151 A.D.3d 1649, 1650, 56 N.Y.S.3d 397 [4th Dept. 2017], lv denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 [2017] ; People v. Richardson , 134 A.D.3d 1566, 1567, 21 N.Y.S.3d 916 [4th Dept. 2015], lv denied 27 N.Y.3d 1074, 38 N.Y.S.3d 845, 60 N.E.3d 1211 [2016] ). The People correctly concede that the order of protection should expire on March 26, 2034, eight years after the maximum expiration date of defendant's term of incarceration (see CPL 530.13[4][A][ii] ), and we therefore modify the judgment accordingly.