SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
394
KA 09-02468
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KENNETH J. DEFAZIO, JR., DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Stephen T.
Miller, A.J.), rendered April 28, 2009. The judgment convicted
defendant, upon his plea of guilty, of course of sexual conduct
against a child in the first degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by amending the order of protection and as
modified the judgment is affirmed, and the matter is remitted to
Monroe County Court for further proceedings.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [b]), defendant initially
contends that his waiver of the right to appeal was not knowingly,
voluntarily and intelligently entered due to his mental limitations.
We reject that contention. “Although the record indicates that
defendant had [learning disabilities], [t]here was not the slightest
indication that defendant was uninformed, confused or incompetent when
he” waived his right to appeal (People v Nudd, 53 AD3d 1115, 1115, lv
denied 11 NY3d 834 [internal quotation marks omitted]). Furthermore,
the record establishes that defendant “understood that the right to
appeal is separate and distinct from those rights automatically
forfeited upon a plea of guilty” (People v Lopez, 6 NY3d 248, 256),
and that he voluntarily waived the right to appeal (see People v
Tantao, 41 AD3d 1274, 1275, lv denied 9 NY3d 882). Defendant’s valid
waiver of the right to appeal forecloses his challenge to the severity
of the sentence (see Lopez, 6 NY3d at 255-256; see generally People v
Lococo, 92 NY2d 825, 827; People v Hidalgo, 91 NY2d 733, 737).
Defendant further contends that, in setting the duration of the
orders of protection, County Court erred in failing to take into
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KA 09-02468
account the jail time credit to which he is entitled. Although that
contention is not foreclosed by the valid waiver of the right to
appeal (see People v Victor, 20 AD3d 927, 928, lv denied 5 NY3d 833,
885), defendant failed to preserve it for our review (see People v
Nieves, 2 NY3d 310, 315-317). We nevertheless exercise our power to
review defendant’s contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]), and we agree with
defendant that the court failed to consider the jail time credit to
which he is entitled (see People v Goins, 45 AD3d 1371, 1372).
Consequently, the court erred in its determination of the maximum
expiration date of the order of protection inasmuch as the duration of
that order exceeds eight years from the date of expiration of the
maximum term of the determinate sentence of imprisonment that was
imposed (see CPL 530.12 [5]). We therefore modify the judgment by
amending the order of protection, and we 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 in
accordance with CPL 530.12 (5).
Entered: April 26, 2013 Frances E. Cafarell
Clerk of the Court