People v. Gabor

• Decision Date: 10 March 2021
• Docket Number: 2019–09256
• Citation: 139 N.Y.S.3d 862 (Mem),192 A.D.3d 824
• Parties: The PEOPLE, etc., respondent, v. Jed GABOR, appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 824

139 N.Y.S.3d 862 (Mem)

The PEOPLE, etc., respondent,

v.Jed GABOR, appellant.

2019–09256

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

Submitted—February 24, 2021

March 10, 2021

Paul Skip Laisure, New York, N.Y. (Sam Feldman of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Christopher Blira–Koessler of counsel; Lorrie A. Zinno on the memorandum), for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (John F. Zoll, J.), rendered June 27, 2019, convicting him of burglary in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review an order of protection issued at the time of sentencing.

ORDERED that upon the appeal from the judgment, so much of the order of protection as directed that it remain in effect until and including June 26, 2031, is vacated, and the matter is remitted to the Supreme Court, Queens County, for a new determination of the duration of the order of protection consistent herewith; and it is further,

ORDERED that the judgment is affirmed.

The duration of the order of protection, which was issued upon the defendant's conviction of burglary in the third degree, is an issue properly before this Court on the appeal from the judgment (see People v. Nieves, 2 N.Y.3d 310, 315, 778 N.Y.S.2d 751, 811 N.E.2d 13 ). However, the defendant's contention with respect to the duration of the order is unpreserved for appellate review, since the defendant did not raise it at sentencing or move to amend the order (see id. at 316–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 ; People v. Sutki S., 185 A.D.3d 610, 612, 124 N.Y.S.3d 824 ; People v. Rodriguez, 157 A.D.3d 971, 67 N.Y.S.3d 485 ). Nonetheless, we reach that contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ; People v. Sutki S., 185 A.D.3d at 612, 124 N.Y.S.3d 824 ; People v. Ramos, 164 A.D.3d 922, 82 N.Y.S.3d 103 ; People v. Ortiz, 25 A.D.3d 811, 812, 809 N.Y.S.2d 153 ).

As the People correctly concede, the duration of the order of protection exceeded the maximum time limit set forth in CPL 530.13(4) and failed to take into account the defendant's jail-time credit. Accordingly, we vacate so much of the order as directed that it remain in effect until and including June 26, 2031, and remit the matter to the...