Friday, October 10, 2008

An Issue Likely to Result in Appellate Relief, Even When Unpreserved

One issue that the Fourth Department has repeatedly reversed on, even when unreserved is the erroneous setting of the expiration date of an order of protection. For example, in February 2008, we noted that the Court in People v Smith (2008 NY Slip Op 00904 [4th Dept 2008)held that
[W]e agree with defendant that the court erred in calculating the expiration date of the order of protection without taking into account the jail time credit to which she is entitled (see People v Clinkscales, 35 AD3d 1266, 1267; People v Hare, 27 AD3d 1171, 1172, lv denied 6 NY3d 892, 894, 898). Although defendant failed to preserve that contention for our review, we exercise our power to review that contention as a matter of discretion in the interest of justice (see People v Fomby, 42 AD3d 894, 895; People v Valdez, 41 AD3d 1255, lv denied 9 NY3d 882).

Last week, in People v Cambridge (2008 NY Slip Op 07435 [10/3/08]) the Court went a step further and corrected such an unpreserved error, in the interest of justice, depsite there being a valid waiver of appeal.

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