People v. Defazio

• Decision Date: 26 April 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Kenneth J. DEFAZIO, Jr., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1438

963 N.Y.S.2d 497

2013 N.Y. Slip Op. 02938

The PEOPLE of the State of New York, Respondent,

v.Kenneth J. DEFAZIO, Jr., Defendant–Appellant.

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

April 26, 2013.

Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.

MEMORANDUM:

On appeal from a judgment convicting him upon his plea of guilty of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ), defendant initially contends that his waiver of the right to appeal was not knowingly, voluntarily and intelligently entered due to his mental limitations. We reject that contention. “Although the record indicates that defendant had [learning disabilities], [t]here was not the slightest indication that defendant was uninformed, confused or incompetent when he” waived his right to appeal ( People v. Nudd, 53 A.D.3d 1115, 1115, 861 N.Y.S.2d 879,lv. denied11 N.Y.3d 834, 868 N.Y.S.2d 608, 897 N.E.2d 1092 [internal quotation marks omitted] ). Furthermore, the record establishes that defendant “understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), and that he voluntarily waived the right to appeal ( see People v. Tantao, 41 A.D.3d 1274, 1275, 838 N.Y.S.2d 757,lv. denied9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761). Defendant's valid waiver of the right to appeal forecloses his challenge to the severity of the sentence ( see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

Defendant further contends that, in setting the duration of the orders of protection, County Court erred in failing to take into account the jail time credit to which he is entitled. Although that contentionis not foreclosed by the valid waiver of the right to appeal ( see People v. Victor, 20 A.D.3d 927, 928, 799 N.Y.S.2d 843,lv. denied5 N.Y.3d 833, 804 N.Y.S.2d 48, 837 N.E.2d 747,5 N.Y.3d 885, 808 N.Y.S.2d 588, 842 N.E.2d 486), defendant failed to preserve it for our review ( see People v. Nieves, 2 N.Y.3d 310, 315–317, 778 N.Y.S.2d 751, 811 N.E.2d 13). We nevertheless exercise our power to review defendant's contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ), and we agree with defendant that the court failed to consider the jail time credit to which he is entitled ( see People v. Goins, 45 A.D.3d 1371, 1372, 844 N.Y.S.2d 805). Consequently, the court erred in its determination of the maximum expiration date of the order of protection inasmuch as the duration of...