PEOPLE v. GAYLE (2026)

Judgment, Supreme Court, Bronx County (Marsha D. Michael, J. at plea, Guy Mitchell, J. at sentencing), rendered February 26, 2020, as amended July 8, 2020, convicting defendant, upon his plea of guilty, of attempted assault in the second degree, and sentencing him, as a second felony offender, to a term of 11/212 to 3 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the provision of the order of protection that directed that it remain in effect until February 25, 2031, and remanding the matter for a new determination of the duration of the order, and otherwise affirmed.

Defendant's appeal waiver on resentencing is unenforceable (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]) and, although defendant's challenge to the duration of the order of protection is unpreserved (see People v. Nieves, 2 N.Y.3d 310, 315–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004]), we reach the issue in the interest of justice (see People v. Kuchma, 230 A.D.3d 1074, 1075, 217 N.Y.S.3d 87 [1st Dept. 2024]).  The expiration date of the order of protection was calculated without taking into consideration that the sentence was to run nunc pro tunc to the date of defendant's arrest.  Pending a new determination, the order shall remain in effect.