People v. Clark

• Decision Date: 18 May 2017
• Citation: 150 A.D.3d 1475,55 N.Y.S.3d 766
• Parties: The PEOPLE of the State of New York, Respondent, v. Roosevelt CLARK, Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1475

55 N.Y.S.3d 766

The PEOPLE of the State of New York, Respondent,

v.Roosevelt CLARK, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 18, 2017.

Gail B. Rubenfeld, Monticello, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, GARRY, EGAN JR. and LYNCH, JJ.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered September 13, 2013, convicting defendant upon his plea of guilty of the crime of aggravated criminal contempt.

In satisfaction of an eight-count indictment stemming from his violation of an order of protection on several occasions, defendant pleaded guilty to aggravated criminal contempt as charged in the first count. Pursuant to the plea agreement, defendant waived his right to appeal during the plea allocution and signed a written waiver of appeal. County Court thereafter imposed the agreed-upon sentence of five years of probation, the first six months to be served in jail, and issued a full stay-away order of protection in favor of the victim in effect until September 13, 2021. Defendant appeals.

Defendant argues that the eight-year duration of the permanent order of protection exceeds the maximum five-year duration then permitted (see CPL former 530.13[4] ), and that County Court further incorrectly calculated the expiration date of the order by failing to take into consideration the jail time credit to which he is entitled (see Penal Law § 70.30[3] ). Because the duration of the order of protection was not disclosed prior to defendant executing the waiver of appeal, this claim survives the appeal waiver (see People v. Belile, 137 A.D.3d 1460, 1462, 27 N.Y.S.3d 738 [2016] ; People v. Loffler, 111 A.D.3d 1059, 1060, 975 N.Y.S.2d 805 [2013] ). Ordinarily, this claim, which does not implicate the legality of the sentence, must be preserved by an objection at or before sentencing (see People v. Nieves, 2 N.Y.3d 310, 316–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ; People v. Belile, 137 A.D.3d at 1462, 27 N.Y.S.3d 738 ). Here, however, the record does not reflect that the duration of the order was disclosed to defendant or to defense counsel at any point prior to or during sentencing. As such, defendant had no practical ability to register a timely objection to the duration of the order and, accordingly, preservation was not required (see generally

People v. Williams, 27 N.Y.3d 212, 221, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ).

With regard to the duration of the order of protection, defendant is correct that, at the time of his sentencing, the relevant statute provided that the duration of the order, "in the case of a felony conviction, shall not exceed ... five years from the date of such sentencing" (CPL former 530.13[4] [A][i]; see People v. Nieves, 2 N.Y.3d at 313, 778 N.Y.S.2d 751, 811 N.E.2d 13 ). Accordingly, the order of protection should be adjusted to provide that it expires on September 13, 2018. To the extent that defendant seeks a further correction of the expiration date of the order of protection to factor in his jail time credit (see Penal Law § 70.30[3] ), this claim was not...