State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 11, 2014 105661 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JASON C. HOPPER,

Appellant.

________________________________

Calendar Date: November 17, 2014

Before: Peters, P.J., Rose, Egan Jr. and Lynch, JJ.

__________

John P.M. Wappett, Public Defender, Lake George (Marcy I.

Flores of counsel), for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee

B. Davenport of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the County Court of Warren County

(Hall Jr., J.), rendered October 3, 2012, convicting defendant

upon his plea of guilty of the crimes of attempted strangulation

in the second degree and criminal contempt in the second degree.

As the result of a domestic dispute, defendant was charged

in an indictment with a number of crimes. In satisfaction of the

indictment, he pleaded guilty to attempted strangulation in the

second degree, a class E felony, and criminal contempt in the

second degree, a class A misdemeanor. In addition, he waived his

right to appeal and consented to the entry of an order of

protection in favor of his wife and young child. In accordance

with the plea agreement, he was sentenced on October 3, 2012 to
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1a to 4 years in prison for attempted strangulation in the

second degree and one year in jail for criminal contempt in the

second degree, to run concurrently. The sentence included an

order of protection prohibiting defendant from having contact

with his wife or child until October 3, 2024. Defendant now

appeals. 

Defendant contends that the duration of the order of

protection exceeded the statutorily authorized time period (see

CPL 530.12 [5]) and failed to take into account his jail time

credit. Although not precluded by his waiver of the right to

appeal, defendant has not preserved this challenge due to his

failure to raise it before County Court (see People v Sharp, 104

AD3d 1325, 1327 [2013], lv denied 21 NY3d 1009 [2013]; People v

Crowley, 34 AD3d 866, 867 [2006], lv denied 7 NY3d 924 [2006]). 

Nevertheless, under the circumstances presented, we will exercise

our discretion to modify the judgment in the interest of justice

(see People v Sharp, 104 AD3d at 1327; People v Crowley, 34 AD3d

at 867; see also CPL 470.15 [6] [a]).

CPL 530.12 (5) provides, in relevant part, that the

duration of an order of protection "shall be fixed by the court

and: (A) in the case of a felony conviction, shall not exceed the

greater of: (i) eight years from the date of such sentencing, or

(ii) eight years from the date of the expiration of the maximum

term of an indeterminate or the term of a determinate sentence of

imprisonment actually imposed." Contrary to defendant's claim,

the expiration date of the order of protection was in compliance

with the statute insofar as October 3, 2024 was eight years from

October 3, 2016, the expiration of the maximum term of

defendant's indeterminate prison term. The People, however,

concede that defendant's jail time credit of 239 days was not

taken into account in calculating the expiration date as it

should have been (see People v DeFazio, 105 AD3d 1438, 1439

[2013], lv denied 21 NY3d 1015 [2013]; People v Nugent, 31 AD3d

976, 978 [2006], lv denied 8 NY3d 925 [2007]). In view of this,

the matter must be remitted to County Court for a new

determination with respect to the expiration date of the order of

protection.

Peters, P.J., Rose and Egan Jr., JJ., concur.
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ORDERED that the judgment is modified, as a matter of

discretion in the interest of justice, by reversing so much

thereof as fixed the duration of the order of protection; matter

remitted to the County Court of Warren County for further

proceedings not inconsistent with this Court's decision; and, as

so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court