Opinion
2019-526 Q CR
07-09-2021
The People of the State of New York, Respondent, v. Guy Mullin, Appellant.
Warren S. Landau, for appellant. Queens County District Attorney (Johnnette Traill, Ellen C. Abbot and Jessica Coalter of counsel), for respondent.
Unpublished Opinion
MOTION DECISION
Warren S. Landau, for appellant.
Queens County District Attorney (Johnnette Traill, Ellen C. Abbot and Jessica Coalter of counsel), for respondent.
PRESENT DAVID ELLIOT, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Gia L. Morris, J., at plea; Bruna L. DiBiase, J., at sentence), rendered February 15, 2019. The judgment convicted defendant, upon his plea of guilty, of petit larceny and criminal possession of stolen property in the fifth degree, and imposed sentence. The appeal from the judgment of conviction brings up for review two orders of protection dated February 15, 2019 issued at the time of sentencing.
ORDERED that the judgment of conviction is affirmed.
Charged with four felonies, defendant pleaded guilty to the reduced charges of petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40). As part of a negotiated plea agreement, defendant agreed to the imposition of three years' probation with two full orders of protection. At sentencing, two months later, defense counsel asked the Criminal Court to set the duration of the orders of protection to three years, instead of the five-year maximum. The Criminal Court asked defense counsel whether there was any relationship between the parties, and, upon being advised that there was none, issued two final five-year full orders of protection.
On appeal, defendant contends solely that the Criminal Court failed to recognize that it had discretion under CPL 530.13 (4) to determine the duration of the orders of protection, failed to exercise any discretion in determining their duration, and, instead, issued orders with the five-year maximum duration permitted by statute.
At the outset, it is noted that a permanent order of protection entered upon a conviction may be challenged on an appeal from a judgment of conviction (see People v Nieves, 2 N.Y.3d 310, 315 [2004]). Contrary to the People's argument, defendant's challenge to the propriety of the order of protection was not forfeited upon his guilty plea, since his "appellate claim does not challenge what is legitimately established by [the] plea" (People v Plunkett, 19 N.Y.3d 400, 406 [2012]; see People v Chambers, 177 A.D.3d 645 [2019], lv denied 34 N.Y.3d 1127 [2020] [on an appeal from a judgment of conviction entered upon the defendant's plea of guilty, addressing, in the interest of justice, the defendant's unpreserved argument that the County Court failed to fix the duration of an order of protection that was issued at the time of sentencing]; People v Patel, 74 A.D.3d 1098, 1099 [2010] [finding, on an appeal from a judgment of conviction entered upon the defendant's plea of guilty, that "[c]ontrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in determinating the duration of the final order of protection entered against him"]; see also People v Nicholson, 190 A.D.3d 768 [2021]; People v Lampedusa, 70 Misc.3d 138 [A], 2021 NY Slip Op 50080[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; cf. People v Konieczny, 2 N.Y.3d 569, 572-573 [2004] [on an appeal from a judgment convicting the defendant, upon his plea of guilty, of criminal contempt in the second degree based upon his violation of an order of protection, finding that the defendant's collateral attack upon the underlying order of protection did not survive his guilty plea]). Furthermore, defendant raised an objection with respect to the duration of the orders of protection at the initial sentencing date and on the date he was actually sentenced. Thus, contrary to the People's argument, defendant's claim was properly preserved for appellate review (see CPL 470.05 [2]).
Contrary to defendant's contention, the Criminal Court properly determined the duration of the final orders of protection entered against him under the circumstances presented (see CPL 530.13 [4]). As part of the plea agreement, defendant agreed to the imposition of two full orders of protection which, the court noted, would typically be for the maximum term in the absence of any agreement to the contrary. As the record reflects that there was no agreement to the contrary, the issuance of two five-year orders of protection was not an improvident exercise of the court's discretion.
Accordingly, the judgment of conviction is affirmed.
ELLIOT, J.P., TOUSSAINT and GOLIA, JJ., concur.