Opinion
206 KA 18–02428
03-13-2020
The PEOPLE of the State of New York, Respondent, v. Lance RILEY, Defendant–Appellant.
SESSLER LAW PC, GENESEO (STEVEN D. SESSLER OF COUNSEL), FOR DEFENDANT–APPELLANT. LANCE RILEY, DEFENDANT–APPELLANT PRO SE. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
SESSLER LAW PC, GENESEO (STEVEN D. SESSLER OF COUNSEL), FOR DEFENDANT–APPELLANT.
LANCE RILEY, DEFENDANT–APPELLANT PRO SE.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, WINSLOW, BANNISTER, AND DEJOSEPH, 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 directing that the periods of postrelease supervision imposed shall run concurrently and by amending the order of protection, and as modified the judgment is affirmed, and the matter is remitted to Livingston County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the second degree ( Penal Law § 130.30[1] ) and criminal sexual act in the third degree (§ 130.40[2] ). As defendant contends in his main brief and as the People correctly concede, County Court erred in imposing consecutive periods of postrelease supervision (see People v. Vickers, 151 A.D.3d 1627, 1627, 57 N.Y.S.3d 270 (4th Dept. 2017) ). Pursuant to Penal Law § 70.45(5)(c), multiple periods of postrelease supervision merge and are satisfied by the service of the longest unexpired term (see People v. Kennedy, 78 A.D.3d 1477, 1479, 910 N.Y.S.2d 602 (4th Dept. 2010), lv denied 16 N.Y.3d 798, 919 N.Y.S.2d 515, 944 N.E.2d 1155 (2011) ). We therefore modify the judgment accordingly.
Defendant further contends in his main brief, and the People correctly concede, that the court erred in setting the expiration date of the order of protection. Although 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) ; 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) ), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ; People v. Lopez, 151 A.D.3d 1649, 1650, 56 N.Y.S.3d 397 (4th Dept. 2017), lv denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 (2017) ; People v. Richardson, 134 A.D.3d 1566, 1567, 21 N.Y.S.3d 916 (4th Dept. 2015), lv denied 27 N.Y.3d 1074, 38 N.Y.S.3d 845, 60 N.E.3d 1211 (2016) ). In light of our determination that the court erred in imposing consecutive periods of postrelease supervision and in light of the court's failure to account for defendant's jail time credit, we agree with defendant that the court erred in calculating the duration of the order of protection (see CPL 530.12[5][A] ; Coleman, 145 A.D.3d at 1642, 44 N.Y.S.3d 316 ). We therefore further 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 an expiration date in accordance with CPL 530.12(5)(A) (see People v. Richardson, 143 A.D.3d 1252, 1255, 38 N.Y.S.3d 674 (4th Dept. 2016), lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 301, 74 N.E.3d 686 (2017) ).
Defendant's contentions in his pro se supplemental brief are based on matters outside the record and must therefore be raised by way of a motion pursuant to CPL 440.10 (see People v. Jordan, 153 A.D.3d 1130, 1131, 57 N.Y.S.3d 919 (4th Dept. 2017), lv denied 30 N.Y.3d 981, 67 N.Y.S.3d 583, 89 N.E.3d 1263 (2017) ).