Opinion
1451 KA 16–02196
02-08-2019
The PEOPLE of the State of New York, Respondent, v. Adam SMART, Also Known as Adam D. Smart, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT–APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN, Albion OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT–APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN, Albion OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by amending the order of protection in favor of defendant's biological daughter to allow contact, communication, or access permitted by a subsequent order issued by a Family or Supreme Court in a custody, visitation or child abuse or neglect proceeding, and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal contempt in the first degree ( Penal Law § 215.51 [c] ), defendant contends that County Court erred in issuing an order of protection in favor of a witness to a prior crime (see CPL 530.13[4][a] ), i.e., his biological daughter, without providing that the order of protection could be modified by a subsequent visitation order issued by Family Court or Supreme Court. As a preliminary matter, we agree with defendant that his waiver of the right to appeal does not preclude us from considering his contention inasmuch as the order of protection was "not a part of the plea agreement" ( People v. Lilley, 81 A.D.3d 1448, 1448, 917 N.Y.S.2d 494 [4th Dept. 2011], lv denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011] ), and is not a part of his sentence (see People v. Nieves, 2 N.Y.3d 310, 316, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ; People v. Tate, 83 A.D.3d 1467, 1467, 919 N.Y.S.2d 919 [4th Dept. 2011] ).
The issuance of an order of protection "incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims ... both prior to and after conviction" ( Nieves, 2 N.Y.3d at 316, 778 N.Y.S.2d 751, 811 N.E.2d 13 ), and "is not a form of punishment" ( People v. Foster, 87 A.D.3d 299, 301, 927 N.Y.S.2d 92 [2d Dept. 2011] ). Here, the order of protection issued in this criminal proceeding bars all contact between defendant and his child, and cannot be modified by a subsequent visitation order of Family Court or Supreme Court unless it is first modified or vacated by the criminal court (see Matter of Utter v. Usher, 150 A.D.3d 863, 865, 55 N.Y.S.3d 71 [2d Dept. 2017] ; Matter of Samantha WW. v. Gerald XX., 107 A.D.3d 1313, 1316, 969 N.Y.S.2d 180 [3d Dept. 2013] ). We agree with defendant that, under the circumstances of this case, the order of protection should be subject to any subsequent orders of custody and visitation, and we therefore modify the judgment by amending the order of protection in favor of defendant's biological daughter so that contact will be allowed if ordered by Family or Supreme Court in a custody, visitation or child abuse or neglect proceeding (see People v. Howes, 93 A.D.3d 954, 955, 939 N.Y.S.2d 766 [3d Dept. 2012] ; People v. Hull, 52 A.D.3d 962, 964, 859 N.Y.S.2d 508 [3d Dept. 2008] ).