People v. Gardner

• Decision Date: 25 June 2015
• Docket Number: 106604
• Citation: 12 N.Y.S.3d 353,129 A.D.3d 1386,2015 N.Y. Slip Op. 05521
• Parties: The PEOPLE of The State of New York, Respondent, v. Michael GARDNER, Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1386
12 N.Y.S.3d 353
2015 N.Y. Slip Op. 05521

The PEOPLE of The State of New York, Respondent
v.
Michael GARDNER, Appellant.

106604

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

June 25, 2015.

12 N.Y.S.3d 354

Theodore J. Stein, Woodstock, for appellant.

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

Before: LAHTINEN, J.P., LYNCH, DEVINE and CLARK, JJ.

Opinion

CLARK, J.

129 A.D.3d 1387

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered January 7, 2014, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

In satisfaction of charges contained in three felony complaints stemming from two residential burglaries and defendant's possession of a small amount of heroin, defendant waived indictment and pleaded guilty to burglary in the second degree as charged in a superior court information. Pursuant to the plea agreement, which included an appeal waiver, defendant was sentenced to a six-year prison term, followed by five years of postrelease supervision, and orders of protection and restitution orders were issued. Defendant appeals.

Initially, defendant argues that the expiration dates of the orders of protection were calculated incorrectly in that County Court did not take into consideration the jail time credit to which he is entitled for the reported 13 months that he was in jail before he began this sentence.¹

12 N.Y.S.3d 355

Since the duration of the orders of protection was first disclosed at sentencing after defendant executed a waiver of appeal at the plea proceedings, this claim survives the appeal waiver (see People v. Crowley, 34 A.D.3d 866, 867, 823 N.Y.S.2d 561 [2006], lv. denied 7 N.Y.3d 924, 827 N.Y.S.2d 693, 860 N.E.2d 995 [2006] ). However, this challenge to the orders of protection, which does not implicate the legality of the sentence, is unpreserved due to defendant's failure to raise it at 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. Shaver, 92 A.D.3d 978, 979, 938 N.Y.S.2d 358 [2012], lv. denied 18 N.Y.3d 998, 945 N.Y.S.2d 652, 968 N.E.2d 1008 [2012] ). We decline to exercise our interest of justice jurisdiction to modify the judgment (see CPL 470.15[6] [a] ; People v. Loffler, 111 A.D.3d 1059, 1060, 975 N.Y.S.2d 805 [2013] ) because defendant and his counsel, aware that he had been incarcerated for a lengthy period of time and would receive jail time credit, should have raised this issue at sentencing. Such practice would have allowed “defendant to

129 A.D.3d 1388

return after [the Department of Corrections and Community Supervision] calculated his jail time credit so that the orders could be amended to reflect changes in defendant's release date, if appropriate” (People v. Nieves, 2 N.Y.3d at 318, 778 N.Y.S.2d 751, 811 N.E.2d 13 ).² Moreover, as the People point out, were we to exercise our discretion, we would be required to remit the matter because defendant did not make a record and we are unable to ascertain the precise amount of jail time credit to which he is entitled (see People v. Shaver, 92 A.D.3d at 979, 938 N.Y.S.2d 358 ).

Defendant also challenges the amount of restitution ordered as unsupported by the record. Given that the plea agreement contemplated restitution but did not specify the amount to be awarded, this challenge is not precluded by the appeal waiver (see People v. Leone, 101 A.D.3d 1352, 1353, 956 N.Y.S.2d 289 [2012], lv. denied 21 N.Y.3d 913, 966 N.Y.S.2d 364, 988...