Opinion
No. 573 KA 19-02181
07-28-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ROBERT C. WILLIAMS, DEFENDANT-APPELLANT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, BANNISTER, MONTOUR, AND OGDEN, JJ.
Appeal from a judgment of the Monroe County Court (Sam L. Valleriani, J.), rendered September 13, 2019. The judgment convicted defendant upon his plea of guilty of robbery in the third degree.
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 orders of protection and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of robbery in the third degree (Penal Law § 160.05), arising out of a bank robbery. In addition to imposing an indeterminate term of incarceration, County Court entered two orders of protection ordering defendant to stay away from two of the bank employees until June 20, 2034.
Initially, defendant contends that the orders of protection are invalid because they improperly contain the words "Family Offense" on their face, and erroneously list CPL 530.12 as the statutory basis for the orders of protection instead of CPL 530.13. We conclude that defendant failed to preserve this contention for our review (see People v Nieves, 2 N.Y.3d 310, 315-317 [2004]), 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 [3] [c]).
Defendant also contends that the court erred in setting expiration dates for the orders of protection by failing to take into account his jail time credit. Although defendant also failed to preserve that contention for our review (see Nieves, 2 N.Y.3d at 315-317), we nonetheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]; People v McBean, 192 A.D.3d 1706, 1707 [4th Dept 2021], lv denied 37 N.Y.3d 958 [2021]; People v Riley, 181 A.D.3d 1192, 1192 [4th Dept 2020]; People v Merchant, 170 A.D.3d 1651, 1652 [4th Dept 2019], lv denied 33 N.Y.3d 1033 [2019]). Pursuant to CPL 530.13 (former [4] [A]), a court may enter an order of protection in addition to any other disposition imposed for a felony conviction, the duration which "shall not exceed the greater of: (i) eight years from the date of such sentencing..., or (ii) eight years from the date of the expiration of the maximum term of an indeterminate or the term of a determinate term of imprisonment actually imposed." Here, the orders of protection contain expiration dates that are more than eight years beyond the date that defendant's sentence was imposed and the date of expiration of the maximum term of the indeterminate term of imprisonment actually imposed (see CPL 530.13 [former (4) (A)]; McBean, 192 A.D.3d at 1707). We therefore modify the judgment by amending the orders of protection, and we remit the matter to County Court to determine the jail time credit to which defendant is entitled, and to specify for each order of protection an expiration date in accordance with the correct statutory provision-i.e., CPL 530.13 (former [4] [A]), the version of the statute in effect when the judgment was rendered on September 13, 2019 (see People v Bradford, 61 A.D.3d 1419, 1421 [4th Dept 2009], affd 15 N.Y.3d 329 [2010]; People v Boje, 194 A.D.3d 1367, 1368-1369 [4th Dept 2021], lv denied 37 N.Y.3d 970 [2021]).
We conclude that the sentence is not unduly harsh or severe.