PEOPLE v. OUCHIE (2009)

 On appeal from a judgment convicting her upon her plea of guilty of criminal contempt in the second degree (Penal Law § 215.50[3] ), defendant contends that Supreme Court erred in directing that the order of protection remain in effect until three years from the date of sentencing.   Although that contention survives the waiver by defendant of her right to appeal (see People v. Cambridge, 55 A.D.3d 1381, 864 N.Y.S.2d 371;  see also People v. Fomby, 42 A.D.3d 894, 896, 839 N.Y.S.2d 901), she failed to preserve it for our review (see People v. Nieves, 2 N.Y.3d 310, 315-317, 778 N.Y.S.2d 751, 811 N.E.2d 13).   We nevertheless exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see People v. Chattley, 49 A.D.3d 1307, 852 N.Y.S.2d 861, lv. denied 10 N.Y.3d 933, 862 N.Y.S.2d 339, 892 N.E.2d 405;  People v. Goins, 45 A.D.3d 1371, 844 N.Y.S.2d 805), and we modify the judgment by providing that the order of protection shall expire on August 9, 2009, three years from the date of defendant's conviction (see Cambridge, 55 A.D.3d 1381, 864 N.Y.S.2d 371;   Chattley, 49 A.D.3d 1307, 852 N.Y.S.2d 861).

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 providing that the order of protection shall expire on August 9, 2009 and as modified the judgment is affirmed.

MEMORANDUM: