        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1391
KA 14-01962
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JERMAINE RICHARDSON, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (ROBERT TUCKER OF COUNSEL),
FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Dennis M.
Kehoe, J.), rendered August 12, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by amending the order of protection to expire
on April 8, 2025, and as modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of criminal contempt in the first degree (Penal Law §
215.51 [c]), defendant contends that County Court erred in issuing a
no-contact order of protection on behalf of the victim, who stated at
sentencing that she wanted only a no-offensive-contact order of
protection. We reject that contention. The sentencing court had
authority to issue an order of protection, and set the terms thereof,
even “in the absence of the victim’s consent” (People v Lilley, 81
AD3d 1448, 1448, lv denied 17 NY3d 860; see People v Paul, 117 AD3d
1499, 1499-1500; People v Monacelli, 299 AD2d 916, 916, lv denied 99
NY2d 617).

     We agree with defendant, however, that the court, in setting the
expiration date of the order of protection, erred in failing to take
into account the time he had served in jail prior to sentencing (see
People v DeFazio, 105 AD3d 1438, 1439, lv denied 21 NY3d 1015; People
v Goins, 45 AD3d 1371, 1372). Although defendant failed to preserve
for our review his contention concerning the expiration date of the
order of protection (see People v Nieves, 2 NY3d 310, 315-316), we
exercise our power to review it as a matter of discretion in the
interest of justice (see CPL 470.15 [3] [c]; People v Clinkscales, 35
                                 -2-                          1391
                                                         KA 14-01962

AD3d 1266, 1267). The People correctly concede that the order of
protection should expire on April 8, 2025, rather than August 12,
2025, as set by the court, and we therefore modify the judgment
accordingly.




Entered:   December 31, 2015                    Frances E. Cafarell
                                                Clerk of the Court
