PEOPLE v. HARKLESS (2026)

DECISION & ORDER

Appeal by the defendant from a judgement of the Supreme Court, Kings County (Donald Leo, J.), rendered January 6, 2023, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.  The appeal brings up for review three 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 January 5, 2036, are vacated, on the law, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the duration of the orders of protection consistent herewith;  and it is further,

ORDERED that pending the 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 modified, on the law and as a matter of discretion in the interest of justice, by vacating the imposition of mandatory surcharges and fees;  as so modified, the judgment is affirmed.

The defendant contends that the duration of three orders of protection issued at the time of sentencing exceed the statutory maximum.  Although the defendant failed to object to the duration of the orders of protection, since the Supreme Court did not announce the duration of the orders of protection at either the plea or sentencing proceedings, the defendant had no practical ability to register a timely objection on this ground, and, thus, the rule of preservation does not apply (see People v Newman, 250 AD3d 760, 760;  People v Beaubrun, 234 AD3d 869, 870).  The duration of the orders of protection exceeded the maximum duration as set forth in CPL 530.13(4).  Under the circumstances, we vacate the durational provisions 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 Williams, 244 AD3d 1257, 1258;  People v Gonzalez, 207 AD3d 656, 657).

Based on the People's consent, and pursuant to the exercise of our interest of justice jurisdiction, we waive the surcharges and fees imposed on the defendant at sentencing (see CPL 420.35[2–a][c];  People v Beaubrun, 234 AD3d at 870;  People v Johnson, 193 AD3d 1076, 1077).

GENOVESI, J.P., BRATHWAITE NELSON, WAN and LOVE, JJ., concur.