People of the State of New York v. Horaceo Gayle
Attorneys and Parties
Brief Summary
Criminal law—calculation of an order of protection’s duration upon resentencing and the effect of a sentence running nunc pro tunc to the arrest date.
Accepted a guilty plea to attempted assault in the second degree and, upon resentencing as a second felony offender, imposed a 1.5 to 3-year term and an order of protection set to expire February 25, 2031.
The provision setting the order of protection’s expiration date was vacated; the matter was remanded for a new determination of the order’s duration.
The expiration date was calculated without accounting for the sentence running nunc pro tunc to the defendant’s arrest date; the appellate court also held the resentencing appeal waiver unenforceable and reached the unpreserved challenge in the interest of justice.
Background
In Bronx County Supreme Court, defendant Horaceo Gayle pleaded guilty to attempted assault in the second degree. He was sentenced as a second felony offender to 1.5 to 3 years. The court issued an order of protection with an expiration date of February 25, 2031. The judgment was rendered February 26, 2020, and amended July 8, 2020. On appeal, Gayle challenged the duration of the order of protection.
Lower Court Decision
Supreme Court, Bronx County (Marsha D. Michael, J. at plea; Guy Mitchell, J. at sentencing) accepted the guilty plea and imposed a 1.5 to 3-year sentence as a second felony offender, along with an order of protection set to expire on February 25, 2031.
Appellate Division Reversal
The Appellate Division modified the judgment by vacating only the portion of the order of protection that set its expiration date and remanded for recalculation of the order’s duration to reflect that the sentence ran nunc pro tunc to the date of arrest. The court held the appeal waiver on resentencing unenforceable (see People v Lopez, 6 NY3d 248, 256-257 [2006]) and reached the unpreserved challenge to the order’s duration in the interest of justice (see People v Nieves, 2 NY3d 310, 315-317 [2004]; People v Kuchma, 230 AD3d 1074, 1075 [1st Dept 2024]). The order of protection remains in effect pending the new determination.
Legal Significance
Clarifies that when a sentence runs nunc pro tunc to an earlier date (such as the arrest date), the duration of an associated order of protection must be calculated accordingly. Also reaffirms that appeal waivers at resentencing may be unenforceable and that appellate courts may review unpreserved challenges to orders of protection in the interest of justice.
An order of protection’s expiration must account for a nunc pro tunc sentence start date; improper calculation warrants vacatur of the duration and remand, while the order remains in effect pending recalculation.