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

421
KA 10-00473
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES H. TATE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered March 26, 2009. 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 and as
modified the judgment is affirmed, and the matter is remitted to Erie
County Court for further proceedings in accordance with the following
Memorandum: Defendant appeals from a judgment convicting him upon his
plea of guilty of criminal contempt in the first degree (Penal Law §
215.51 [b] [v]). We agree with defendant that County Court erred in
calculating the duration of the order of protection issued against
defendant without taking into account the jail time credit to which he
is entitled (see People v Bradford, 61 AD3d 1419, 1421, affd 15 NY3d
329). Although defendant raises that contention for the first time on
appeal and has thus failed to preserve it for our review, we
nonetheless exercise our power to review it as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]). We therefore
modify the judgment by amending the order of protection, and we remit
the matter to County Court to determine the jail time credit to which
defendant is entitled and to specify in the order of protection an
expiration date in accordance with CPL 530.13 (see Bradford, 61 AD3d
at 1421). Furthermore, as the People correctly concede, defendant’s
waiver of the right to appeal was invalid because County Court
conflated the waiver of the right to appeal with the rights forfeited
by defendant based on his guilty plea (see generally People v Lopez, 6
NY3d 248, 256-257; People v Abrams, 75 AD3d 927, lv denied 15 NY3d
918). The invalidity of defendant’s waiver of the right to appeal,
however, does not impact his final contention on appeal, i.e., that
the order of protection is unduly harsh and severe, inasmuch as an
                                 -2-                           421
                                                         KA 10-00473

order of protection is not a part of the sentence (see People v
Nieves, 2 NY3d 310, 315-317; People v Tidd [appeal No. 2], 81 AD3d
1405), the review of which would be encompassed by the waiver of the
right to appeal (see Lopez, 6 NY3d at 255). Nevertheless, we reject
defendant’s contention with respect to the severity of the order of
protection, taking into account the fact that the length of the order
of protection will be modified upon remittal.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
