                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 11, 2014                   105661
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JASON C. HOPPER,
                    Appellant.
________________________________


Calendar Date:   November 17, 2014

Before:   Peters, P.J., Rose, Egan Jr. and Lynch, JJ.

                             __________


      John P.M. Wappett, Public Defender, Lake George (Marcy I.
Flores of counsel), for appellant.

      Kathleen B. Hogan, District Attorney, Lake George (Emilee
B. Davenport of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Warren County
(Hall Jr., J.), rendered October 3, 2012, convicting defendant
upon his plea of guilty of the crimes of attempted strangulation
in the second degree and criminal contempt in the second degree.

      As the result of a domestic dispute, defendant was charged
in an indictment with a number of crimes. In satisfaction of the
indictment, he pleaded guilty to attempted strangulation in the
second degree, a class E felony, and criminal contempt in the
second degree, a class A misdemeanor. In addition, he waived his
right to appeal and consented to the entry of an order of
protection in favor of his wife and young child. In accordance
with the plea agreement, he was sentenced on October 3, 2012 to
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1a to 4 years in prison for attempted strangulation in the
second degree and one year in jail for criminal contempt in the
second degree, to run concurrently. The sentence included an
order of protection prohibiting defendant from having contact
with his wife or child until October 3, 2024. Defendant now
appeals.

      Defendant contends that the duration of the order of
protection exceeded the statutorily authorized time period (see
CPL 530.12 [5]) and failed to take into account his jail time
credit. Although not precluded by his waiver of the right to
appeal, defendant has not preserved this challenge due to his
failure to raise it before County Court (see People v Sharp, 104
AD3d 1325, 1327 [2013], lv denied 21 NY3d 1009 [2013]; People v
Crowley, 34 AD3d 866, 867 [2006], lv denied 7 NY3d 924 [2006]).
Nevertheless, under the circumstances presented, we will exercise
our discretion to modify the judgment in the interest of justice
(see People v Sharp, 104 AD3d at 1327; People v Crowley, 34 AD3d
at 867; see also CPL 470.15 [6] [a]).

      CPL 530.12 (5) provides, in relevant part, that the
duration of an order of protection "shall be fixed by the court
and: (A) in the case of a felony conviction, shall not exceed the
greater of: (i) eight years from the date of such sentencing, or
(ii) 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." Contrary to defendant's claim,
the expiration date of the order of protection was in compliance
with the statute insofar as October 3, 2024 was eight years from
October 3, 2016, the expiration of the maximum term of
defendant's indeterminate prison term. The People, however,
concede that defendant's jail time credit of 239 days was not
taken into account in calculating the expiration date as it
should have been (see People v DeFazio, 105 AD3d 1438, 1439
[2013], lv denied 21 NY3d 1015 [2013]; People v Nugent, 31 AD3d
976, 978 [2006], lv denied 8 NY3d 925 [2007]). In view of this,
the matter must be remitted to County Court for a new
determination with respect to the expiration date of the order of
protection.

     Peters, P.J., Rose and Egan Jr., JJ., concur.
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      ORDERED that the judgment is modified, as a matter of
discretion in the interest of justice, by reversing so much
thereof as fixed the duration of the order of protection; matter
remitted to the County Court of Warren County for further
proceedings not inconsistent with this Court's decision; and, as
so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
