SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
78
KA 13-01740
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DONALD RAWSON, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Genesee County (Eric
R. Adams, A.J.), rendered July 24, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the second
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal contempt in the second degree
(Penal Law § 215.50 [3]). We agree with defendant that he did not
knowingly, voluntarily, and intelligently waive his right to appeal.
“Despite the existence of a written appeal waiver form signed by
defendant and his attorney, no questions were asked of defendant about
the appeal waiver and his understanding thereof” (People v Frysinger,
111 AD3d 1397, 1398; see People v Jones, 118 AD3d 1354, 1354, lv
denied 24 NY3d 961; cf. People v Griffin, 120 AD3d 1569, 1569-1570).
We reject defendant’s contention that the three-year period of
probation is illegal because Supreme Court directed that the period
would expire three years after the date of sentencing, without taking
into account the three days defendant served in jail prior to
sentencing. Where, as here, there is a split sentence of
incarceration and probation, jail time credit must be applied to
reduce both the sentence of incarceration and the term of probation
(see People v Zephrin, 14 NY3d 296, 300). The three-year period of
probation therefore will be reduced automatically by the jail time
credit (see generally § 70.30 [3]; Zephrin, 14 NY3d at 301; People v
White, 79 AD3d 1160, 1161). The sentence is not unduly harsh or
severe. Finally, defendant’s contention that certain provisions in
the order of protection and terms of probation unduly limit his
freedom of speech is not preserved for our review (see CPL 470.05 [2];
see generally Matter of Gracie C. v Nelson C., 118 AD3d 417, 417), and
-2- 78
KA 13-01740
we decline to exercise our power to review it as a matter of
discretion in the interest of justice (see CPL 470.15 [3] [c]).
Entered: February 6, 2015 Frances E. Cafarell
Clerk of the Court