Opinion
2013-11-21
The PEOPLE of the State of New York, Respondent, v. Lee A. LOFFLER, Appellant.
Albert F. Lawrence, Greenfield Center, for appellant. Johanne Sullivan, Special Prosecutor, Alexandria Bay, for respondent.
Albert F. Lawrence, Greenfield Center, for appellant. Johanne Sullivan, Special Prosecutor, Alexandria Bay, for respondent.
Before: LAHTINEN, J.P., STEIN, SPAIN and EGAN JR., JJ.
EGAN JR., J.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered May 2, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.
Following an altercation with his girlfriend, defendant was charged in a felony complaint with criminal possession of a controlled substance in the third degree and—in a related misdemeanor information—with assault in the third degree. Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with one count of criminal possession of a controlled substance in the third degree. Defendant thereafter waived his right to appeal and pleaded guilty to one count of criminal possession of a controlled substance in the fifth degree. During the course of the sentencing proceeding, the People asked for a no-contact order of protection in favor of defendant's girlfriend. Defendant raised no objection to the issuance of the order of protection and took no position with respect to the duration thereof, asking only that County Court consider issuing a no-harassment order of protection instead. County Court sentenced defendant as a second felony offender to a prison term of three years, followed by 1 1/2 years of postrelease supervision, and issued a no-contact order of protection in favor of defendant's girlfriend—set to expire on November 1, 2024. This appeal by defendant ensued.
The record fails to reflect the disposition of the assault charge.
We affirm. Although defendant's challenge to the validity and duration of the underlying order of protection survives his waiver of the right to appeal ( see People v. Smith, 83 A.D.3d 1213, 1213, 920 N.Y.S.2d 736 [2011] ), County Court's claimed violation of CPL former 530.13(4) does not give rise to a nonwaivable jurisdictional defect ( cf. People v. Konieczny, 2 N.Y.3d 569, 572–574, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004]; People v. Ellison, 106 A.D.3d 419, 420, 965 N.Y.S.2d 37 [2013], lv. denied21 N.Y.3d 1004, 971 N.Y.S.2d 255, 993 N.E.2d 1278 [2013]; People v. Trombley, 91 A.D.3d 1197, 1200, 937 N.Y.S.2d 665 [2012], lv. denied21 N.Y.3d 914, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013] ). Accordingly, having raised no objection at the time of sentencing, defendant's assertion that County Court erred in issuing the order of protection in the first instance ( see People v. Nieves, 2 N.Y.3d 310, 315–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004]; People v. Morris, 82 A.D.3d 908, 909–910, 918 N.Y.S.2d 198 [2011], lv. denied17 N.Y.3d 808, 929 N.Y.S.2d 568, 953 N.E.2d 806 [2011] ) and in fixing the duration thereof ( see People v. Said, 105 A.D.3d 1392, 1393, 963 N.Y.S.2d 796 [2013], lv. denied21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397 [2013]; People v. Khan, 101 A.D.3d 903, 903, 955 N.Y.S.2d 409 [2012], lv. denied20 N.Y.3d 1100, 965 N.Y.S.2d 796, 988 N.E.2d 534 [2013]; People v. Nickel, 97 A.D.3d 983, 984, 947 N.Y.S.2d 917 [2012], lv. denied 20 N.Y.3d 1013, 960 N.Y.S.2d 357, 984 N.E.2d 332 [2013]; People v. Maxineau, 78 A.D.3d 732, 732, 909 N.Y.S.2d 659 [2010], lv. denied16 N.Y.3d 744, 917 N.Y.S.2d 626, 942 N.E.2d 1051 [2011] ), as well as defendant's claim that the subject order was not part of the underlying plea agreement ( see People v. Myers, 46 A.D.3d 1028, 1029, 848 N.Y.S.2d 377 [2007], lv. denied10 N.Y.3d 814, 857 N.Y.S.2d 47, 886 N.E.2d 812 [2008]; People v. Reid, 21 A.D.3d 1215, 1216, 801 N.Y.S.2d 437 [2005] ), have not been preserved for our review. Finally, given the particular facts of this case, we decline defendant's invitation to exercise our interest of justice jurisdiction to take corrective action.
ORDERED that judgment is affirmed.
LAHTINEN, J.P., STEIN and SPAIN, JJ., concur.