Opinion
878 KA 19-01455
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Michael AUSTIN, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by amending the order of protection to expire on June 29, 2037, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of four counts of rape in the second degree ( Penal Law § 130.30 [1] ). Preliminarily, we note that defendant's notice of appeal recites an incorrect date on which the judgment was rendered, but inasmuch as the notice of appeal is otherwise accurate and recites the correct indictment number, we exercise our discretion, in the interest of justice, and treat the notice of appeal as valid (see People v. Delgado , 183 A.D.3d 1236, 1236, 121 N.Y.S.3d 712 [4th Dept. 2020], lv denied 35 N.Y.3d 1044, 127 N.Y.S.3d 859, 151 N.E.3d 541 [2020] ; People v. Mitchell , 93 A.D.3d 1173, 1173, 940 N.Y.S.2d 393 [4th Dept. 2012], lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012] ).
Defendant contends that the waiver of the right to appeal is invalid and that the sentence is unduly harsh and severe. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and therefore does not preclude our review of his challenge to the severity of the sentence (see People v. Love , 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020] ), we conclude that the sentence is not unduly harsh or severe.
Defendant's further contention that County Court erred in calculating the expiration date of the order of protection would survive even a valid waiver of the right to appeal (see People v. Davis , 153 A.D.3d 1617, 1618, 60 N.Y.S.3d 889 [4th Dept. 2017], lv denied 30 N.Y.3d 1059, 71 N.Y.S.3d 9, 94 N.E.3d 491 [2017] ), but defendant failed to preserve that contention for our review (see People v. Nieves , 2 N.Y.3d 310, 315-316, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ; Davis , 153 A.D.3d at 1618, 60 N.Y.S.3d 889 ). We nevertheless exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ), and we agree with defendant that the expiration date of the order of protection exceeds that allowed by the law. Where, as here, a defendant is convicted of a felony and his or her sentence does not include a term of probation for an enumerated felony sexual assault, CPL 530.13 (4) (A) provides that the expiration date of the order of protection "shall not exceed the greater of: (i) eight years from the date of such sentencing, ... or (ii) eight years from the date of the expiration of the ... term of a determinate sentence of imprisonment actually imposed." Here, the expiration date of defendant's determinate sentence of imprisonment, which includes the six-year period of postrelease supervision, is June 29, 2029 (see People v. Williams , 19 N.Y.3d 100, 104-105, 945 N.Y.S.2d 629, 968 N.E.2d 983 [2012] ; People v. Gonyeau , 144 A.D.3d 1574, 1574, 40 N.Y.S.3d 318 [4th Dept. 2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ). Thus, eight years from that date results in a maximum expiration date of June 29, 2037 for the order of protection. We therefore modify the judgment by amending the order of protection to expire on that date (see People v. Griswold , 186 A.D.3d 1104, 1105, 127 N.Y.S.3d 374 [4th Dept. 2020], lv denied 35 N.Y.3d 1113, 133 N.Y.S.3d 520, 158 N.E.3d 537 [2020] ).