Opinion
KA 02-02464.
Decided April 30, 2004.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered July 10, 2002. The judgment convicted defendant, upon his plea of guilty, of robbery in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (DANIEL P. MAJCHRZAK, JR., OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the orders of protection and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for further proceedings in accordance with the following Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of robbery in the second degree (Penal Law § 160.10). As conceded by the People, the termination dates of the orders of protection are erroneous because County Court failed to take into account the jail time credit to which defendant is entitled ( see People v. Richardson, 1 A.D.3d 956; People v. Grice, 300 A.D.2d 1005, 1006, lv denied 99 N.Y.2d 654). We therefore modify the judgment by vacating the orders 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 new orders of protection a termination date that is three years from the date of the expiration of the maximum term of the sentence, less that jail time credit ( see CPL 530.13 [ii]). We decline, however, to exercise our power to modify the sentence as a matter of discretion in the interest of justice ( see 470.15[6][b]).