PEOPLE v. SMITH (2008)

 Defendant appeals from a judgment convicting her upon her plea of guilty of assault in the second degree (Penal Law § 120.05 [2] ).   Contrary to the contention of defendant, the record establishes that she voluntarily, knowingly and intelligently waived her right to appeal, and that waiver encompasses her contention with respect to County Court's suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754).   Although the further contention of defendant that her guilty plea was not knowingly and voluntarily entered survives her waiver of the right to appeal (see People v. Bland, 27 A.D.3d 1052, 810 N.Y.S.2d 718, lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674), defendant failed to preserve her contention for our review by failing to move to withdraw her plea or to vacate the judgment of conviction (see People v. Burney, 41 A.D.3d 1221, 838 N.Y.S.2d 278, lv. denied 9 N.Y.3d 863, 840 N.Y.S.2d 893, 872 N.E.2d 1199).   This case does not fall within the narrow exception to the preservation doctrine (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  Burney, 41 A.D.3d 1221, 838 N.Y.S.2d 278).

 We conclude that the sentence is not unduly harsh or severe, but we agree with defendant that the court erred in calculating the expiration date of the order of protection without taking into account the jail time credit to which she is entitled (see People v. Clinkscales, 35 A.D.3d 1266, 1267, 825 N.Y.S.2d 395;  People v. Hare, 27 A.D.3d 1171, 1172, 811 N.Y.S.2d 539, lv. denied 6 N.Y.3d 892, 894, 898, 817 N.Y.S.2d 627, 629, 633, 850 N.E.2d 674, 676, 680).   Although defendant failed to preserve that contention for our review, we exercise our power to review that contention as a matter of discretion in the interest of justice (see People v. Fomby, 42 A.D.3d 894, 895, 839 N.Y.S.2d 901;  People v. Valdez, 41 A.D.3d 1255, 837 N.Y.S.2d 823, lv. denied 9 N.Y.3d 882, 842 N.Y.S.2d 795, 874 N.E.2d 762).   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 (former [4] ), the version of the statute in effect when the judgment was rendered on May 2, 2006.

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 Yates County Court for further proceedings.

MEMORANDUM: