KALB, CHRISTOPHER, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1402
KA 10-01131
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CHRISTOPHER KALB, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered April 14, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree,
criminal possession of a weapon in the third degree, criminal contempt
in the first degree and intimidating a victim or witness in the third
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 providing that the order of protection shall
expire on March 9, 2029, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, burglary in the second degree
(Penal Law § 140.25 [2]). Defendant contends that County Court’s
handling of a jury note violated the requirements set forth in CPL
310.30 and People v O’Rama (78 NY2d 270), inasmuch as he was denied
the opportunity to have meaningful input or time to fashion an
appropriate response to the note. We conclude that defendant failed
to preserve his contention for our review. The record establishes
that defendant, defense counsel and the prosecutor knew the contents
of the brief note, which only requested additional instructions on the
elements of the charged offenses. Further, it is apparent from the
record that defendant and defense counsel were present throughout the
proceedings and that no objection or request was made with respect to
the content of the note or the manner in which the court responded to
it. Thus, unlike O’Rama (78 NY2d at 278-279), this is not a case
where there was “a failure to provide [defense] counsel with
meaningful notice of the contents of the jury note or an opportunity
to respond” (People v Kadarko, 14 NY3d 426, 429), and defendant
therefore was required to preserve his contention for our review (see
People v Starling, 85 NY2d 509, 516).
-2- 1402
KA 10-01131
Defendant further contends that the court erred in fixing the
duration of the order of protection. Although defendant failed to
preserve that contention for our review (see People v Nieves, 2 NY3d
310, 315-317), we nevertheless exercise our power to review it as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). The court sentenced defendant to a determinate term of
imprisonment of 12 years for burglary in the second degree and to
indeterminate terms of imprisonment of 2 to 4 years for criminal
contempt in the first degree (Penal Law § 215.51 [b] [iii]) and
intimidating a victim or witness in the third degree (§ 215.15 [1]).
The order of protection expires on March 9, 2033, which is eight years
after the expiration of the determinate sentence and the indeterminate
sentences, which were to run concurrently to each other and
consecutively to the determinate sentence. The version of CPL 530.13
(4) (A) (ii) in effect at the time the judgment was rendered provided
that the duration of an order of protection entered with respect to a
felony conviction shall not exceed “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 . . . ”
(emphasis added). Thus, the statute permits the order of protection
to run, at most, eight years from the end of the term of the longest
sentence imposed for the counts upon which the order of protection was
based, i.e., the determinate term imposed for the burglary count (see
People v Jackson, 85 AD3d 1697, 1699, lv denied 17 NY3d 817). We
therefore modify the judgment by providing that the order of
protection shall expire on March 9, 2029 (see People v Cameron, 87
AD3d 1366).
Defendant failed to preserve for our review his contentions
concerning an exhibit that was inadvertently provided to the jury, one
of his statements that was not included in the People’s CPL 710.30
notice and alleged prosecutorial misconduct (see CPL 470.05 [2]). We
decline to exercise our power to review them as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]). We have reviewed
defendant’s remaining contentions and conclude that they are without
merit.
Entered: January 31, 2012 Frances E. Cafarell
Clerk of the Court