Opinion
2018-1236 Q CR
05-07-2021
The PEOPLE of the State of New York, Respondent, v. Kerryann SHAKESPEARE, Appellant.
New York City Legal Aid Society (Kristina Schwarz of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and William H. Branigan of counsel), for respondent.
New York City Legal Aid Society (Kristina Schwarz of counsel), for appellant.
Queens County District Attorney (John M. Castellano, Johnnette Traill and William H. Branigan of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ.
ORDERED that the judgment of conviction is affirmed.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to unlawful possession of personal identification information in the third degree ( Penal Law § 190.81 ) in exchange for a sentence of a conditional discharge and payment of $6,651 in restitution, as well as a permanent order of protection in favor of the complainant, a patient, whose debit card defendant, an at-home health care worker, admitted to using without authority or permission to withdraw and steal the restitution amount over the course of nearly two years. A temporary order of protection was in effect throughout the proceedings until it was replaced by a permanent order of protection at sentencing.
Although the issuance of the permanent order of protection during the sentencing proceeding is not a part of defendant's sentence (see CPL 530.13 [4] ; People v Nieves , 2 NY3d 310, 316 [2004] ), defendant's appeal from the judgment of conviction brings up for review defendant's challenge to the Criminal Court's issuance of the permanent order of protection (see CPL 450.10 [1] ; People v Rodriguez , 68 Misc 3d 130[A], 2020 NY Slip Op 50953[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020] ["a permanent order of protection entered upon a conviction may be challenged on an appeal from a judgment of conviction"]). However, defendant's claim is unpreserved (see CPL 470.05 [2] ; Nieves , 2 NY3d at 316-318 ; People v Mitchell , 142 AD3d 1185 [2016] ; People v May , 138 AD3d 1146, 1147 [2016] ; People v O'Conner , 136 AD3d 945 [2016] ; People v Sweeney , 106 AD3d 841, 842 [2013] ), and we decline to address it as a matter of discretion in the interest of justice.
Accordingly, the judgment of conviction is affirmed.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.