PEOPLE v. SCARLETT (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Abena Darkeh, J.), rendered April 18, 2023, convicting him of assault in the first degree, upon his plea of guilty, and imposing sentence.  The appeal from the judgment brings up for review orders of protection issued at the time of sentencing.

ORDERED that upon the appeal from the judgment, so much of the orders of protection as directed that they remain in effect until and including April 17, 2040, is vacated, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the duration of the orders of protection;  and it is further,

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

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record establishes that he validly waived his right to appeal (see People v. Jackson, 213 A.D.3d 697, 697, 180 N.Y.S.3d 915).  The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Jackson, 213 A.D.3d at 697, 180 N.Y.S.3d 915).

The issue of the duration of the orders of protection issued upon the defendant's conviction survives the valid waiver of his right to appeal (see People v. Moncrieft, 168 A.D.3d 982, 985, 92 N.Y.S.3d 335;  People v. Ramos, 164 A.D.3d 922, 923, 82 N.Y.S.3d 103).  However, the defendant's contention that the orders of protection exceeded the permissible statutory maximum duration because they failed to credit him with time served is unpreserved for appellate review because the defendant did not challenge the duration of the orders of protection at sentencing or move to amend the orders of protection thereafter (see People v. Nieves, 2 N.Y.3d 310, 315–316, 778 N.Y.S.2d 751, 811 N.E.2d 13;  People v. Graves, 201 A.D.3d 736, 737, 156 N.Y.S.3d 888).  Nevertheless, we reach this issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a];  People v. Lloyd, 235 A.D.3d 900, 900–901, 228 N.Y.S.3d 626;  People v. Ramos, 164 A.D.3d 922, 923, 82 N.Y.S.3d 103).

The duration of the orders of protection issued at the time of sentencing exceeded the maximum time limit set forth in CPL 530.13(4), since they did not take into account the defendant's jail-time credit (see People v. Khedr, 234 A.D.3d 991, 227 N.Y.S.3d 172;  People v. Vanhoven, 231 A.D.3d 752, 753, 217 N.Y.S.3d 679).  Accordingly, we vacate so much of the orders of protection as directed that they remain in effect until and including April 17, 2040, and remit the matter to the Supreme Court, Kings County, for a new determination of the duration of the orders of protection (see People v. Newman, 234 A.D.3d 877, 878, 225 N.Y.S.3d 370;  People v. Gonzalez, 207 A.D.3d 656, 657, 170 N.Y.S.3d 484).  Pending a new determination as to the duration of the orders of protection, the orders of protection shall remain in effect (see People v. Newman, 234 A.D.3d at 879, 225 N.Y.S.3d 370).

IANNACCI, J.P., CHAMBERS, WAN and TAYLOR, JJ., concur.