SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
310
KA 12-00467
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
LARRY COLLINS, JR., DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
LARRY COLLINS, JR., DEFENDANT-APPELLANT PRO SE.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered November 18, 2011. The judgment
convicted defendant, upon his plea of guilty, of attempted burglary in
the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted burglary in the second degree (Penal Law
§§ 110.00, 140.25 [2]), defendant contends that the order of
protection issued in conjunction with sentencing is invalid because it
exceeds the maximum permissible duration of such an order under the
version of CPL 530.13 in effect when he was sentenced. Although that
contention survives defendant’s valid waiver of the right to appeal
(see People v Ouchie, 59 AD3d 926, 926; People v Holmes, 294 AD2d 871,
872, lv denied 98 NY2d 730), defendant did not object to the duration
of the order of protection at sentencing and therefore failed to
preserve his contention for our review (see People v Nieves, 2 NY3d
310, 316-317; People v Tidd [appeal No. 2], 81 AD3d 1405, 1406). In
any event, defendant’s contention is without merit inasmuch as, when
defendant was sentenced on November 18, 2011, CPL 530.13 former (4)
provided in relevant part that the maximum duration of an order of
protection was eight years from the end of any determinate term of
incarceration actually imposed.
Defendant further contends that the order of protection should be
vacated because Supreme Court failed to articulate its reasons for
issuing it. “Even assuming, arguendo, that defendant’s contention
survives the plea and the valid waiver of the right to appeal . . . ,
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KA 12-00467
we conclude that it is not preserved for our review inasmuch as
defendant failed to object to the order of protection at sentencing”
(People v Kulyeshie, 71 AD3d 1478, 1479, lv denied 14 NY3d 889; see
Nieves, 2 NY3d at 316-317). We decline to exercise our power to
review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [3] [c]).
Contrary to the contention of defendant in his pro se
supplemental brief, the court did not err in resentencing him,
inasmuch as the court thereby acted within its inherent power to
correct an illegal sentence (see People v McCoy, 98 AD3d 1135, 1136,
lv denied 20 NY3d 933; see generally People v DeValle, 94 NY2d 870,
871-872). Here, the record establishes that the court initially
directed that defendant’s sentence be served concurrently with his
unexpired parole time. After realizing that concurrent sentences were
illegal in that situation (see Penal Law § 70.25 [2-a]), the court
resentenced defendant on the same day, directing that the sentence be
served consecutively to the unexpired part of his prior sentence. We
have considered the remaining contentions in defendant’s pro se
supplemental brief and conclude that they are without merit.
Entered: May 9, 2014 Frances E. Cafarell
Clerk of the Court