Opinion
2014-09-26
The PEOPLE of the State of New York, Respondent, v. Gregory L. RUSSELL, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO AND DeJOSEPH, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ), defendant contends that Supreme Court erred in issuing an order of protection in favor of two witnesses ( seeCPL 530.13[4] [a] ), i.e., the mother of defendant's children and their daughter. As a preliminary matter, we agree with defendant that his waiver of the right to appeal does not preclude us from considering his contention inasmuch as the order of protection was “not a part of the plea agreement” (People v. Lilley, 81 A.D.3d 1448, 1448, 917 N.Y.S.2d 494, lv. denied17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806), and is not a part of his sentence ( see People v. Nieves, 2 N.Y.3d 310, 316, 778 N.Y.S.2d 751, 811 N.E.2d 13; People v. Tate, 83 A.D.3d 1467, 1467, 919 N.Y.S.2d 919). We note, however, that defendant failed to preserve his contention for our review by not objecting at sentencing to the issuance of the order of protection in favor of those two witnesses ( seeCPL 470.05[2]; Nieves, 2 N.Y.3d at 315–317, 778 N.Y.S.2d 751, 811 N.E.2d 13; People v. Collins, 117 A.D.3d 1535, 1535, 985 N.Y.S.2d 373; People v. Loffler, 111 A.D.3d 1059, 1060–1061, 975 N.Y.S.2d 805; People v. Sweeney, 106 A.D.3d 841, 842, 966 N.Y.S.2d 120). In any event, we conclude that the contention lacks merit ( seeCPL 530.13[4][a]; People v. Wilson, 115 A.D.3d 1229, 1229, 982 N.Y.S.2d 636, lv. denied23 N.Y.3d 969, 988 N.Y.S.2d 577).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.