Opinion
No. 2013–1202 Q CR.
09-17-2015
The PEOPLE of the State of New York, Respondent, v. William WITCHER, Appellant.
Opinion
Appeal from five judgments of the Criminal Court of the City of New York, Queens County (Gene R. Lopez, J.), rendered April 30, 2013. The judgments convicted defendant, upon his pleas of guilty, of endangering the welfare of a child, two charges of assault in the third degree, and two charges of bail jumping in the third degree, respectively.
ORDERED that the judgments of conviction are affirmed.
Defendant was initially charged in an accusatory instrument with assault in the third degree (Penal Law § 120.001 ) and harassment in the second degree (Penal Law § 240.261 ) for allegedly punching his sister in the head on May 23, 2012 and, in another accusatory instrument, with endangering the welfare of a child (Penal Law § 260 .101 ) and attempted assault in the third degree (Penal Law §§ 110.00, 120.001 ) for attempting to punch his niece in the face between May 23 and May 24, 2012. After the Criminal Court released defendant on his own recognizance, he failed to appear in court for his scheduled court dates in connection with these two dockets. As a result, he was thereafter charged, in two separate accusatory instruments, with bail jumping in the third degree (Penal Law § 215.55). Additionally, defendant was arrested and charged in a fifth accusatory instrument with assault in the third degree (Penal Law § 120.001 ), criminal obstruction of breathing or blood (Penal Law § 121.11[a] ), and endangering the welfare of a child (Penal Law § 260.101 ) for allegedly choking his niece on November 19, 2012. Through his counsel, defendant pleaded guilty to endangering the welfare of a child, two charges of assault in the third degree, and two charges of bail jumping in the third degree in satisfaction of all five accusatory instruments. He received bargained-for sentences of three concurrent terms of 60 days' incarceration and two concurrent terms of three years' probation, with 60 days' incarceration as a condition of each term. On appeal, defendant contends that his separate convictions for two charges of bail jumping in the third degree, based on his failure to appear at a single court date, were multiplicitous thereby violating the statutory prohibition against double jeopardy, and that the court imposed an unlawful sentence by failing to reduce his probation to account for the fact that, at the time of sentencing, he had already served his entire term of imprisonment.
Defendant's statutory double jeopardy claim is not preserved for appellate review (see People v. Gonzalez, 99 N.Y.2d 76, 82–83 2002; People v. Cruz, 96 N.Y.2d 857, 858 2001; People v. Dodson, 48 N.Y.2d 36, 38 1979; People v. Smalls, 81 AD3d 860 2011 ), and we decline to reach it in the interest of justice.
Since defendant's sentences fall within the limits set forth by the Penal Law (Penal Law §§ 60.012[d]; 65.003[b][i]; 70.151; see also Matter of Pirro v. Angiolillo, 89 N.Y.2d 351, 353 1996 ), they were lawful. Defendant's claim regarding jail-time credit is not properly before this court on direct appeal from the judgments of conviction (see CPL 450.10; People v. Searor, 163 A.D.2d 824 1990; People v. Curtis, 143 A.D.2d 1030 1988; People v. Leonard, 133 A.D.2d 938 1987; People v. Blake, 39 A.D.2d 587 1972 ). Rather, defendant's proper remedy is by way of a proceeding pursuant to CPLR article 78 to review the appropriate prison authority's calculation of the jail-time credit to which he claims entitlement (see Curtis, 143 A.D.2d at 1030; People v. Vivenzio, 103 A.D.2d 1044 1984; Blake, 39 A.D.2d at 587).
Accordingly, the judgments of conviction are affirmed.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.