Opinion
2019–12655 Ind. No. 6835/18
05-03-2023
The PEOPLE, etc., respondent, v. Asa LOWE, appellant.
Patricia Pazner, New York, NY (Anna Kuo of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Amy Appelbaum of counsel; Darci Siegel on the brief), for respondent.
Patricia Pazner, New York, NY (Anna Kuo of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Amy Appelbaum of counsel; Darci Siegel on the brief), for respondent.
COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, JOSEPH A. ZAYAS, LILLIAN WAN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joanne Quinones, J.), rendered October 3, 2019, convicting him of attempted rape in the first degree, upon his 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 October 2, 2042, is vacated, as a matter of discretion in the interest of justice, 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 the 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.
Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Gibbs, 183 A.D.3d 761, 121 N.Y.S.3d 660 ; People v. Howard, 178 A.D.3d 730, 111 N.Y.S.3d 208 ). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
The defendant's contention that the order of protection issued at the time of sentencing failed to include his jail-time credit is unpreserved for appellate review as the defendant did not challenge the duration of the order of protection at sentencing, or move to amend the order of protection anytime thereafter (see People v. Nieves, 2 N.Y.3d 310, 316–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 ; People v. Ramos, 164 A.D.3d 922, 923, 82 N.Y.S.3d 103 ). Nevertheless, we reach this issue in the exercise of our interest of justice jurisdiction (see People v. Chambers, 177 A.D.3d 645, 646, 112 N.Y.S.3d 164 ; People v. Ramos, 164 A.D.3d at 923, 82 N.Y.S.3d 103 ). As the People correctly concede, the order of protection exceeded the maximum time limit set forth in CPL 530.13(4), and failed to take into account the defendant's jail-time credit. Accordingly, we vacate so much of the order of protection as directed that it remain in effect until and including October 2, 2042, 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. Jeremiah, 194 A.D.3d 840, 842, 143 N.Y.S.3d 908 ; People v. Chambers, 177 A.D.3d at 645, 112 N.Y.S.3d 164 ).
DUFFY, J.P., CHRISTOPHER, ZAYAS and WAN, JJ., concur.