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The People of the State of New York v. Robert Shaver

State of New York Supreme Court, Appellate Division Third Judicial Department


February 2, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ROBERT SHAVER, APPELLANT.

Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.), rendered March 3, 2011, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree, and (2) from a judgment of said court, rendered March 3, 2011, convicting defendant upon his plea of guilty of the crime of perjury in the second degree.

The opinion of the court was delivered by: Peters, J.P.

MEMORANDUM AND ORDER

Calendar Date: January 11, 2012

Before: Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ.

Defendant was charged with various crimes in two separate indictments. He pleaded guilty to criminal contempt in the first degree in satisfaction of the first indictment and perjury in the second degree in satisfaction of the second indictment. The guilty pleas were also in satisfaction of any uncharged crimes and defendant waived his right to appeal as part of both pleas.

County Court thereafter sentenced defendant, as a second felony offender, to the agreed-upon concurrent prison sentences of 2 to 4 years on the criminal contempt conviction and 3 to 6 years on the perjury conviction. The court also issued five orders of protection. Defendant appeals.

We reject defendant's contention that his waivers of the right to appeal were invalid. Our review of the plea colloquys reveals that County Court distinguished the right to appeal from the rights forfeited by defendant's guilty pleas and defendant acknowledged his understanding of the waivers. Further, defendant signed written waivers in open court that acknowledged that counsel had explained the ramifications of the waivers. Accordingly, we find that defendant validly waived his right to appeal (see People v Benson, 87 AD3d 1228, 1228 [2011]; People v Wicks, 83 AD3d 1223, 1224 [2011], lv denied 17 NY3d 810 [2011]). Defendant's valid waivers of the right to appeal preclude his contention that the sentence imposed on the perjury conviction was harsh or excessive (see People v Richardson, 83 AD3d 1290, 1292 [2011], lv denied 17 NY3d 821 [2011]; People v Dishaw, 81 AD3d 1035, 1037 [2011], lv denied 16 NY3d 858 [2011]).

Defendant also contends, and the People concede, that the expiration dates of the orders of protection issued by County Court were calculated incorrectly. While defendant did not preserve this contention for review due to his failure to raise it before County Court (see People v Nugent, 31 AD3d 976, 978 [2006], lv denied 8 NY3d 925 [2007]), we will exercise our interest of justice jurisdiction to modify the relevant judgment (see CPL 470.15 [6] [a]). As relevant here, the duration of an order of protection cannot exceed "eight years from the date of the expiration of the maximum term of an indeterminate or the term of a determinate sentence of imprisonment actually imposed" (CPL 530.13 [4] [A] [ii]). Further, in setting the expiration date, County Court must determine the jail time credit to which defendant is entitled (see People v Roman, 13 AD3d 1115, 1116 [2004], lv denied 4 NY3d 802 [2005]; see also Penal Law § 70.30

[3]). Here, the orders of protection, which expire in March 2025, were issued pursuant to defendant's conviction for criminal contempt, for which he was sentenced to an indeterminate sentence with a maximum of four years. Therefore, the expiration dates exceed the statutory limit. Accordingly, we remit the matter to County Court for a new determination of the duration of the orders, taking into consideration any jail time credit defendant may have earned, which is unclear from the record (see People v Nugent, 31 AD3d at 978; People v Roman, 13 AD3d at 1116).

Lahtinen, Kavanagh, Stein and Garry, JJ., concur.

ORDERED that the judgment convicting defendant of the crime of criminal contempt in the first degree is modified, as a matter of discretion in the interest of justice, by reversing so much thereof as fixed the duration of the orders of protection; matter remitted to the County Court of Albany County for further proceedings not inconsistent with this Court's decision, and, pending said proceedings, said orders of protection shall remain in full force and effect; and, as so modified, affirmed.

ORDERED that the judgment convicting defendant of perjury in the second degree is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120202

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