PEOPLE v. VANHOVEN (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry Kron, J.), rendered October 4, 2017, convicting him of criminal contempt in the first degree, upon his plea of guilty, and imposing sentence.  The appeal brings up for review an order of protection issued at the time of sentencing.

ORDERED that upon the appeal from the judgment, so much of the order of protection as directed that it remain in effect until and including October 3, 2028, is vacated, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new determination of the duration of the order of protection consistent herewith;  and it is further,

ORDERED that pending a new determination as to the duration of the order of protection, the order of protection shall remain in effect;  and it is further,

ORDERED that the judgment is affirmed.

Although the defendant did not object to the duration of the order of protection on the ground that he was not credited for jail time served, he had no practical ability to register a timely objection on that basis, since the Supreme Court did not announce the duration of the order of protection at either the plea or sentencing proceedings (see People v. Delaurentis, 216 A.D.3d 664, 665, 188 N.Y.S.3d 155;  People v. Gonzalez, 207 A.D.3d 656, 657, 170 N.Y.S.3d 484).  Thus, the rule of preservation does not apply (see People v. Gonzalez, 207 A.D.3d at 657, 170 N.Y.S.3d 484).

As the People, in effect, correctly concede, the duration of the order of protection issued at sentencing exceeded the maximum time limit set forth in CPL 530.12(5), since it did not take into account the defendant's jail-time credit (see People v. Lamontagne, 210 A.D.3d 797, 798, 177 N.Y.S.3d 717;  People v. Palmer, 203 A.D.3d 1075, 162 N.Y.S.3d 770).

The People's remaining contention is without merit.

MILLER, J.P., WOOTEN, DOWLING and TAYLOR, JJ., concur.