SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
October 2, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
KEYVIO H. OWENS, DEFENDANT-APPELLANT.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered March 16, 2006. The judgment convicted defendant, upon his plea of guilty, of assault in the first degree.
PRESENT: HURLBUTT, J.P., FAHEY, PERADOTTO, GREEN, AND PINE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Defendant appeals from a judgment convicting him upon his guilty plea of assault in the first degree (Penal Law § 120.10 ). Defendant failed to preserve for our review his contention that County Court failed to take into account the five days of jail time credit to which he is entitled in determining the duration of the order of protection (see People v Nieves, 2 NY3d 310, 315-317), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15  [a]; People v Bentley, 63 AD3d 1624; People v Ortiz, 43 AD3d 1348, lv denied 9 NY3d 1008). Contrary to defendant's further contention, the sentence is not unduly harsh or severe.
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