People v. Harris

205 A.D.3d 733

165 N.Y.S.3d 732 (Mem)

The PEOPLE, etc., respondent,

v.Jasmin HARRIS, appellant.

2019–11958

Ind. No. 17-01013

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 11, 2022

May 4, 2022

Mark Diamond, New York, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio of counsel), for respondent.

HECTOR D. LASALLE, P.J., SHERI S. ROMAN, LINDA CHRISTOPHER, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered September 20, 2018, convicting him of attempted assault in the first degree (two counts), upon his plea of guilty, and imposing sentence. The appeal brings up for review an order of protection dated September 20, 2018, issued at the time of sentencing.

ORDERED that upon the appeal from the judgment, so much of the order of protection dated September 20, 2018, as directed that it remain in effect until September 20, 2036, less the defendant's jail time credit, to be computed by the applicable department of correction, is vacated, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Westchester County, for a new determination of the duration of the order of protection, consistent herewith; and it is further,

ORDERED that the judgment is affirmed.

The defendant contends that his plea of guilty was not knowing, voluntary, and intelligent. This contention is unpreserved for appellate review, since he did not move to withdraw his plea or otherwise raise the issue before the Supreme Court (see CPL 220.60, 470.05[2] ; People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). In any event, the defendant's contention is without merit (see People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ; People v. Lopez, 71 N.Y.2d at 666 n. 2, 529 N.Y.S.2d 465, 525 N.E.2d 5 ).

The Supreme Court set the duration of an order of protection issued at the time of sentencing as "September 20, 2036, less the defendant's jail time credit, which is to be computed by the applicable department of correction." As the People correctly concede, in doing so, the court "effectively failed to set a definite expiration date, and thus, duration, for the order of protection" ( People v. Chambers, 177 A.D.3d 645, 646, 112 N.Y.S.3d 164 ; see CPL 530.13[4], [5] ). Accordingly, we vacate so much of the order of...