Opinion
1144 KA 19-01377
01-28-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. STEVEN FARRELL, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, NEMOYER, AND CURRAN, JJ.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered October 2, 2018. The judgment convicted defendant, upon a plea of guilty, of criminal contempt in the first degree and orders of protection were entered in conjunction with the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by amending order of protection No. 2018-000498 to delete the stay-away and no-contact directives with respect to defendant's son in paragraphs 1 and 14 thereof, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal contempt in the first degree (Penal Law § 215.51 [b] [i]). Even assuming, arguendo, that defendant did not validly waive his right to appeal, we nevertheless conclude that his sentence is not unduly harsh or severe.
Defendant's challenge to order of protection No. 2018-000498-i.e., the final order of protection in favor of, inter alia, defendant's son-would survive even a valid waiver of the right to appeal (see People v May, 138 A.D.3d 1146, 1147 [2d Dept 2016], lv denied 27 N.Y.3d 1153 [2016]; People v Lilley, 81 A.D.3d 1448, 1448 [4th Dept 2011], lv denied 17 N.Y.3d 860 [2011]). On the merits of that challenge, we note that a final stay-away or no-contact protective order in a criminal action may be issued only in favor of the "defendant's victims or witnesses in th[e given] matter," i.e., the victims of or witnesses to the crime of which the defendant was convicted (People v Dolan, 140 A.D.3d 1681, 1682 [4th Dept 2016]; see CPL 530.12 [5] [a]; CPL 530.13 [4] [a]; People v Cooke, 119 A.D.3d 1399, 1401 [4th Dept 2014], affd 24 N.Y.3d 1196 [2015], cert denied 577 U.S. 1011 [2015]). Thus, "[i]nasmuch as [defendant's son was] not defendant's victim[] or witness[ ] in this matter, the order of protection may not require defendant to stay away from [or avoid contact with his son]" (Dolan, 140 A.D.3d at 1682; see Cooke, 119 A.D.3d at 1401; People v Raduns, 70 A.D.3d 1355, 1355 [4th Dept 2010], lv denied 14 N.Y.3d 891 [2010], reconsideration denied 15 N.Y.3d 808 [2010]). Contrary to Supreme Court's view and the People's assertion, the appropriateness of a stay-away or no-contact directive with respect to defendant's son is properly addressed in Family Court, not in this criminal prosecution (see Matter of Brianna L. [Marie A.], 103 A.D.3d 181, 188 [2d Dept 2012]; see generally Matter of Granger v Misercola, 21 N.Y.3d 86, 91 [2013]). We therefore modify the judgment accordingly.