Opinion
2013-04-26
The PEOPLE of the State of New York, Respondent, v. Kenneth J. DEFAZIO, Jr., Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ), defendant initially contends that his waiver of the right to appeal was not knowingly, voluntarily and intelligently entered due to his mental limitations. We reject that contention. “Although the record indicates that defendant had [learning disabilities], [t]here was not the slightest indication that defendant was uninformed, confused or incompetent when he” waived his right to appeal ( People v. Nudd, 53 A.D.3d 1115, 1115, 861 N.Y.S.2d 879,lv. denied11 N.Y.3d 834, 868 N.Y.S.2d 608, 897 N.E.2d 1092 [internal quotation marks omitted] ). Furthermore, the record establishes that defendant “understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), and that he voluntarily waived the right to appeal ( see People v. Tantao, 41 A.D.3d 1274, 1275, 838 N.Y.S.2d 757,lv. denied9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761). Defendant's valid waiver of the right to appeal forecloses his challenge to the severity of the sentence ( see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).
Defendant further contends that, in setting the duration of the orders of protection, County Court erred in failing to take into account the jail time credit to which he is entitled. Although that contentionis not foreclosed by the valid waiver of the right to appeal ( see People v. Victor, 20 A.D.3d 927, 928, 799 N.Y.S.2d 843,lv. denied5 N.Y.3d 833, 804 N.Y.S.2d 48, 837 N.E.2d 747,5 N.Y.3d 885, 808 N.Y.S.2d 588, 842 N.E.2d 486), defendant failed to preserve it 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). We nevertheless exercise our power to review defendant's contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ), and we agree with defendant that the court failed to consider the jail time credit to which he is entitled ( see People v. Goins, 45 A.D.3d 1371, 1372, 844 N.Y.S.2d 805). Consequently, the court erred in its determination of the maximum expiration date of the order of protection inasmuch as the duration of that order exceeds eight years from the date of expiration of the maximum term of the determinate sentence of imprisonment that was imposed ( seeCPL 530.12[5] ). 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).
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 Monroe County Court for further proceedings.