Opinion
947 KA 21-00399
12-22-2023
The PEOPLE of the State of New York, Respondent, v. Erik J. WARREN, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (LEAH N. FARWELL OF COUNSEL), FOR DEFENDANT-APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (LEAH N. FARWELL OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, OGDEN, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of reckless assault of a child ( Penal Law § 120.02 ). As defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 564-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ) and thus does not preclude our review of his challenge to the severity of his sentence (see People v. Martin , 213 A.D.3d 1299, 1299-1300, 181 N.Y.S.3d 927 [4th Dept. 2023] ). Nevertheless, we conclude that the sentence is not unduly harsh or severe.
Defendant did not preserve his contention regarding the order of protection issued at sentencing (see People v. Nieves , 2 N.Y.3d 310, 315-317, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ; see generally People v. Smart , 169 A.D.3d 1525, 1526, 91 N.Y.S.3d 920 [4th Dept. 2019] ; People v. Foster , 87 A.D.3d 299, 301, 927 N.Y.S.2d 92 [2d Dept. 2011], lv denied 18 N.Y.3d 858, 938 N.Y.S.2d 866, 962 N.E.2d 291 [2011] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] ; see also People v. Storms , 147 A.D.3d 1341, 1341, 45 N.Y.S.3d 849 [4th Dept. 2017] ).