SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1272 

KA 15-00811 

PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ROOSEVELT R. COLEMAN, JR., DEFENDANT-APPELLANT.

 

CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT. 

ROOSEVELT R. COLEMAN, JR., DEFENDANT-APPELLANT PRO SE.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Cayuga County Court (Thomas G.

Leone, J.), rendered February 18, 2015. The judgment convicted

defendant, upon his plea of guilty, of criminal contempt in the first

degree (two counts). 

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

Cayuga County Court for further proceedings in accordance with the

following memorandum: On appeal from a judgment convicting him upon

his plea of guilty to two counts of criminal contempt in the first

degree (Penal Law § 215.51 [c]), defendant contends that his guilty

plea was jurisdictionally defective because that crime was neither

charged in the indictment nor constitutes a lesser included offense of

a crime charged in the indictment. We reject that contention inasmuch

as first-degree criminal contempt under Penal Law § 215.51 (c)

constitutes a lesser included offense of aggravated criminal contempt

under Penal Law § 215.52 (3), two counts of which were charged in the

indictment (see generally CPL 1.20 [37]; People v Green, 56 NY2d 427,

431, rearg denied 57 NY2d 775). Indeed, as charged in the indictment,

the commission of first-degree criminal contempt under section 215.51

(c) is itself the criminal act required under the aggravated criminal

contempt counts under section 215.52 (3). 

Defendant contends that the expiration date on the order of

protection, i.e., February 18, 2027, is illegal because it fails to

account for his jail time credit under Penal Law § 70.30 (3) (see CPL

530.12 [5]; People v Hopper, 123 AD3d 1234, 1235; People v DeFazio,

105 AD3d 1438, 1439, lv denied 21 NY3d 1015; People v Nugent, 31 AD3d

976, 978, lv denied 8 NY3d 925). That contention is not preserved for
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KA 15-00811 

our review (see People v Nieves, 2 NY3d 310, 315-317), but we

nevertheless exercise our power to review it as a matter of discretion

in the interests of justice. We agree with defendant that County

Court failed to account for the jail time credit to which he is

entitled and, consequently, erred in its determination of the

expiration date of the order of protection. 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 an expiration date for the order of

protection in accordance with CPL 530.12 (5) (see People v Richardson,

143 AD3d 1252, 1255; DeFazio, 105 AD3d at 1439). 

We conclude that the sentence is not unduly harsh or severe. 

Finally, we have considered defendant’s remaining contentions in his

main and pro se supplemental briefs, and we conclude that they are

without merit. 

Entered: December 23, 2016 Frances E. Cafarell

Clerk of the Court