Opinion
161 KA 19-00078
05-07-2021
The PEOPLE of the State of New York, Respondent, v. Taylor T. BOJE, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, 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 and as modified the judgment is affirmed, and the matter is remitted to Ontario County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of criminal contempt in the first degree ( Penal Law § 215.51 [b] [v] ).
By failing to move to withdraw the plea or to vacate the judgment, defendant failed to preserve for our review his contention that his plea was not voluntarily, knowingly, or intelligently entered (see People v. Wilkes , 160 A.D.3d 1491, 1491, 76 N.Y.S.3d 342 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ; People v. Hill , 128 A.D.3d 1479, 1480, 8 N.Y.S.3d 805 [4th Dept. 2015], lv denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ; People v. Williams , 124 A.D.3d 1285, 1285, 999 N.Y.S.2d 642 [4th Dept. 2015], lv denied 25 N.Y.3d 1078, 12 N.Y.S.3d 630, 34 N.E.3d 381 [2015] ). Furthermore, this case does not fall within the rare exception to the preservation requirement (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; Hill , 128 A.D.3d at 1480, 8 N.Y.S.3d 805 ).
We further conclude that defendant was afforded due process with respect to the imposition and subsequent revocation of interim probation, and that County Court properly determined that defendant violated the conditions of his interim probation. Under the terms of defendant's plea agreement, he was placed on a one-year period of interim probation, which, if successfully completed, would be followed by a one-year term of probation and the felony charge to which he pleaded guilty would be reduced to a misdemeanor. The court explained the conditions of the interim probation to defendant during the plea colloquy and provided him with a written copy of those conditions, which defendant acknowledged and signed. During the period of interim probation, the probation department filed a petition charging defendant with violations of the conditions. After a hearing, the court determined that defendant had violated the conditions of his interim probation and sentenced him to an indeterminate term of incarceration.
Contrary to defendant's contention, "[t]he procedures set forth in CPL 410.70 do not apply where, as here, there has been no sentence of probation" ( People v. Rollins , 50 A.D.3d 1535, 1536, 856 N.Y.S.2d 417 [4th Dept. 2008], lv denied 10 N.Y.3d 939, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008] ). Instead, because interim probation is imposed prior to sentencing, the presentence procedures set forth in CPL 400.10 apply (see id. ). Here, the "hearing conducted by the court was sufficient pursuant to CPL 400.10 (3) to enable the court to ‘assure itself that the information upon which it bas[ed] the sentence [was] reliable and accurate’ " ( id. , quoting People v. Outley , 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993] ; see People v. Wissert , 85 A.D.3d 1633, 1634, 924 N.Y.S.2d 909 [4th Dept. 2011], lv denied 17 N.Y.3d 956, 936 N.Y.S.2d 82, 959 N.E.2d 1031 [2011] ; People v. Saucier , 69 A.D.3d 1125, 1126, 892 N.Y.S.2d 684 [3d Dept. 2010] ). Although defendant now contends that the court improperly relied on hearsay in making its determination, he failed to preserve that contention for our review inasmuch as he did not object on that ground when the court gave him an opportunity to do so (see People v. Koons , 187 A.D.3d 1638, 1639, 133 N.Y.S.3d 364 [4th Dept. 2020] ; People v. Dissottle , 68 A.D.3d 1542, 1544, 893 N.Y.S.2d 649 [3d Dept. 2009], lv denied 14 N.Y.3d 799, 899 N.Y.S.2d 133, 925 N.E.2d 937 [2010] ). We agree with defendant, however, that the court erred in setting the expiration date for the order of protection without "taking into account [the] jail time credit to which defendant is entitled" ( People v. Mingo , 38 A.D.3d 1270, 1271, 832 N.Y.S.2d 721 [4th Dept. 2007] [internal quotation marks omitted]; see People v. Coleman , 145 A.D.3d 1641, 1642, 44 N.Y.S.3d 316 [4th Dept. 2016], lv denied 29 N.Y.3d 947, 54 N.Y.S.3d 378, 76 N.E.3d 1081 [2017] ; People v. Adams , 66 A.D.3d 1355, 1356, 886 N.Y.S.2d 525 [4th Dept. 2009], lv denied 13 N.Y.3d 858, 891 N.Y.S.2d 692, 920 N.E.2d 97 [2009] ). Although defendant failed to preserve that contention 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 [2004] ), we exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ). We therefore modify the judgment by amending the order of protection, and we remit the matter to County Court to determine the jail time credit to which defendant is entitled and to specify in the order of protection an expiration date in accordance with CPL 530.12 (5).
We conclude that the sentence is not unduly harsh or severe. Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of criminal contempt in the first degree under Penal Law § 215.51 (b) (iv), and it must therefore be amended to reflect that defendant was actually charged and convicted under section 215.51 (b) (v) (see People v. Bumpars , 178 A.D.3d 1379, 1381, 116 N.Y.S.3d 838 [4th Dept. 2019], lv denied 36 N.Y.3d 1055, 141 N.Y.S.3d 749, 165 N.E.3d 675 [2021] ).