People v Clinkscales

People v Clinkscales 2006 NY Slip Op 09892 [35 AD3d 1266] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

The People of the State of New York, Respondent, v Calvin Floyd Clinkscales, Appellant.

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Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), rendered July 17, 2003. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law and as a matter of discretion in the interest of justice by vacating the sentence and amending the order of protection and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the second degree (Penal Law § 120.05 [2]). We agree with defendant that County Court erred in sentencing him to a five-year period of postrelease supervision (see § 70.45 [2]; see generally People v Dennis [appeal No. 2], 6 AD3d 1211, 1212 [2004]). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing. We further agree with defendant that the court erred in fixing the duration of the order of protection without taking into account the jail time credit to which he is entitled (see People v Lamagna, 30 AD3d 1052, 1053-1054 [2006], lv denied 7 NY3d 814 [2006]; People v Chambers, 21 AD3d 1288 [2005]). Although defendant failed to preserve that contention for our review (see People v Nieves, 2 NY3d 310, 315-317 [2004]), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We therefore further modify the judgment by amending the order of protection, and we further 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 that is three years from the date of expiration of the maximum term of the sentence (see Lamagna, 30 AD3d at 1053-1054; Chambers, 21 AD3d at 1289). Present—Scudder, P.J., Hurlbutt, Gorski and Pine, JJ.