Opinion
1391 KA 14-01962.
12-31-2015
The PEOPLE of the State of New York, Respondent, v. Jermaine RICHARDSON, Defendant–Appellant. (Appeal No. 1.).
James S. Kernan, Public Defender, Lyons (Robert Tucker of Counsel), for Defendant–Appellant. Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of Counsel), for Respondent.
James S. Kernan, Public Defender, Lyons (Robert Tucker of Counsel), for Defendant–Appellant.
Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of Counsel), for Respondent.
Opinion
MEMORANDUM:
On appeal from a judgment convicting him, upon his plea of guilty, of criminal contempt in the first degree (Penal Law § 215.51[c] ), defendant contends that County Court erred in issuing a no-contact order of protection on behalf of the victim, who stated at sentencing that she wanted only a no-offensive-contact order of protection. We reject that contention. The sentencing court had authority to issue an order of protection, and set the terms thereof, even “in the absence of the victim's consent” (People v. Lilley, 81 A.D.3d 1448, 1448, 917 N.Y.S.2d 494, lv. denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806; see People v. Paul, 117 A.D.3d 1499, 1499–1500, 984 N.Y.S.2d 738; People v. Monacelli, 299 A.D.2d 916, 916, 750 N.Y.S.2d 690, lv. denied 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174).
We agree with defendant, however, that the court, in setting the expiration date of the order of protection, erred in failing to take into account the time he had served in jail prior to sentencing (see People v. DeFazio, 105 A.D.3d 1438, 1439, 963 N.Y.S.2d 497, lv. denied 21 N.Y.3d 1015, 971 N.Y.S.2d 497, 994 N.E.2d 393; People v. Goins, 45 A.D.3d 1371, 1372, 844 N.Y.S.2d 805). Although defendant failed to preserve for our review his contention concerning the expiration date of the order of protection (see People v. Nieves, 2 N.Y.3d 310, 315–316, 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 470.153[c]; People v. Clinkscales, 35 A.D.3d 1266, 1267, 825 N.Y.S.2d 395). The People correctly concede that the order of protection should expire on April 8, 2025, rather than August 12, 2025, as set by the court, and we therefore modify the judgment accordingly.
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 April 8, 2025, and as modified the judgment is affirmed.
SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, and DeJOSEPH, JJ., concur.