Opinion
2021–04133 Ind. No. 6366/17
12-27-2023
The PEOPLE, etc., respondent, v. John SIDNEY, appellant.
Patricia Pazner, New York, NY (Martin B. Sawyer of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Rachel Raimondi of counsel; Glen Price on the brief), for respondent.
Patricia Pazner, New York, NY (Martin B. Sawyer of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Rachel Raimondi of counsel; Glen Price on the brief), for respondent.
MARK C. DILLON, J.P., LINDA CHRISTOPHER, BARRY E. WARHIT, CARL J. LANDICINO, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew J. D'Emic, J.), rendered May 13, 2021, convicting her of robbery in the third degree and petit larceny, upon her 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 May 13, 2033, is vacated, on the law, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the duration of the order of protection consistent herewith; and it is further,
ORDERED that pending a new determination as to the duration of the order of protection, the order of protection shall remain in effect; and it is further,
ORDERED that the judgment is affirmed.
Although the defendant did not object to the duration of the order of protection as failing to credit her for jail time, she had no practical ability to register a timely objection on this ground, since the Supreme Court did not announce the duration of the order of protection at either the plea or sentencing proceedings (see People v. Delaurentis, 216 A.D.3d 664, 665, 188 N.Y.S.3d 155 ; People v. Gonzalez, 207 A.D.3d 656, 657, 170 N.Y.S.3d 484 ; People v. O'Sullivan, 198 A.D.3d 986, 987, 157 N.Y.S.3d 47 ). Thus, the rule of preservation does not apply (see People v. Delaurentis, 216 A.D.3d at 665, 188 N.Y.S.3d 155 ; People v. Gonzalez, 207 A.D.3d at 657, 170 N.Y.S.3d 484 ; People v. O'Sullivan, 198 A.D.3d at 987, 157 N.Y.S.3d 47 ). As the People correctly concede, the order of protection issued at the time of sentencing did not credit the defendant for jail time served. Thus, we vacate so much of the order of protection as directed that it remain in effect until and including May 13, 2033, and remit the matter to the Supreme Court, Kings County, for a new determination of the duration of the order of protection (see People v. Delaurentis, 216 A.D.3d at 665, 188 N.Y.S.3d 155 ; People v. Baker, 179 A.D.3d 827, 828, 113 N.Y.S.3d 891 ). Pending a new determination as to the duration of the order of protection, the order of protection shall remain in effect.
DILLON, J.P., CHRISTOPHER, WARHIT and LANDICINO, JJ., concur.