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

1272
KA 15-00811
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROOSEVELT R. COLEMAN, JR., DEFENDANT-APPELLANT.


CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.

ROOSEVELT R. COLEMAN, JR., DEFENDANT-APPELLANT PRO SE.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered February 18, 2015. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree (two counts).

     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
Cayuga County Court for further proceedings in accordance with the
following memorandum: On appeal from a judgment convicting him upon
his plea of guilty to two counts of criminal contempt in the first
degree (Penal Law § 215.51 [c]), defendant contends that his guilty
plea was jurisdictionally defective because that crime was neither
charged in the indictment nor constitutes a lesser included offense of
a crime charged in the indictment. We reject that contention inasmuch
as first-degree criminal contempt under Penal Law § 215.51 (c)
constitutes a lesser included offense of aggravated criminal contempt
under Penal Law § 215.52 (3), two counts of which were charged in the
indictment (see generally CPL 1.20 [37]; People v Green, 56 NY2d 427,
431, rearg denied 57 NY2d 775). Indeed, as charged in the indictment,
the commission of first-degree criminal contempt under section 215.51
(c) is itself the criminal act required under the aggravated criminal
contempt counts under section 215.52 (3).

     Defendant contends that the expiration date on the order of
protection, i.e., February 18, 2027, is illegal because it fails to
account for his jail time credit under Penal Law § 70.30 (3) (see CPL
530.12 [5]; People v Hopper, 123 AD3d 1234, 1235; People v DeFazio,
105 AD3d 1438, 1439, lv denied 21 NY3d 1015; People v Nugent, 31 AD3d
976, 978, lv denied 8 NY3d 925). That contention is not preserved for
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                                                         KA 15-00811

our review (see People v Nieves, 2 NY3d 310, 315-317), but we
nevertheless exercise our power to review it as a matter of discretion
in the interests of justice. We agree with defendant that County
Court failed to account for the jail time credit to which he is
entitled and, consequently, erred in its determination of the
expiration date of the order of protection. 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 an expiration date for the order of
protection in accordance with CPL 530.12 (5) (see People v Richardson,
143 AD3d 1252, 1255; DeFazio, 105 AD3d at 1439).

     We conclude that the sentence is not unduly harsh or severe.
Finally, we have considered defendant’s remaining contentions in his
main and pro se supplemental briefs, and we conclude that they are
without merit.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
