People v. Lamontagne

210 A.D.3d 797

177 N.Y.S.3d 717

The PEOPLE, etc., respondent,

v.Jeson LAMONTAGNE, appellant.

2019–12650

Ind. No. 4979/18

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

Submitted—September 21, 2022

November 9, 2022

Patricia Pazner, New York, NY (Michael Arthus of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Denise Pavlides of counsel; Kenneth Cooper on the brief), for respondent.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew D'Emic, J., at plea; Laura Johnson, J., at sentence), rendered October 4, 2019, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review an order of protection issued at the time of sentencing.

ORDERED that upon the appeal from the judgment, so much of the order of protection as directed that it remain in effect until and including October 3, 2028, is vacated, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings 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 duration of the order of protection, which was issued upon the defendant's conviction of attempted assault in the second degree, is an issue properly before this Court on the appeal from the judgment (see People v. Nieves, 2 N.Y.3d 310, 315, 778 N.Y.S.2d 751, 811 N.E.2d 13 ).

However, the defendant's contention regarding the duration of the order of protection issued at sentencing is unpreserved for appellate review, since the defendant did not raise the contention at sentencing or move to amend the order of protection (see People v. Nieves, 2 N.Y.3d at 316–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 ; People v. Sutki S., 185 A.D.3d 610, 612, 124 N.Y.S.3d 824 ; People v. Rodriguez, 157 A.D.3d 971, 67 N.Y.S.3d 485 ). Nonetheless, we reach that contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ; People v. Sutki S., 185 A.D.3d at 612, 124 N.Y.S.3d 824 ; People v. Ramos, 164 A.D.3d 922, 923, 82 N.Y.S.3d 103 ; People v. Ortiz, 25 A.D.3d 811, 812, 809 N.Y.S.2d 153 ).

As the People concede, the duration of the order of protection exceeded the maximum time limit set forth in CPL 530.12(5)(A). Accordingly, we vacate so much of the order of protection as directed that it remain in effect until and including October 3, 2028, and remit the...