Opinion
KA 02-00714.
November 21, 2003.
Appeal from a judgment of Supreme Court, Monroe County (Fisher, J.), entered January 24, 2002, convicting defendant after a jury trial of, inter alia, criminal contempt in the first degree.
Edward J. Nowak, Public Defender, Rochester (Kathleen McDonough of Counsel), for Defendant-Appellant.
Howard R. Relin, District Attorney, Rochester (Patrick H. Fierro of Counsel), for Plaintiff-Respondent.
Before: Present: Pigott, Jr., P.J., Pine, Scudder, Gorski, 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 order of protection and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following Memorandum: Defendant appeals from a judgment convicting him of one count of criminal contempt in the first degree (Penal Law § 215.51 [b] [iv]) and four counts of criminal contempt in the second degree (§ 215.50 [1], [3]). As the People correctly concede, the expiration date of the order of protection is erroneous because Supreme Court failed to take into account the jail time credit to which defendant is entitled ( see People v. Grice, 300 A.D.2d 1005, 1006, lv denied 99 N.Y.2d 654). We therefore modify the judgment by vacating the order of protection, and we remit the matter to Supreme Court, Monroe County, to determine the jail time credit to which defendant is entitled and to specify in the new order of protection a termination date that is three years from the date of expiration of the maximum term of the sentence, less that jail time credit. We decline, however, to exercise our power to modify the sentence as a matter of discretion in the interest of justice.