Opinion
No. 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.
Appeal from a judgment of the Orleans County Court (Sanford A. Church, J.), rendered December 12, 2019. The judgment convicted defendant, upon his plea of guilty, of reckless assault of a child.
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 [2019], cert denied - U.S. -, 140 S.Ct. 2634 [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 [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 [2004]; see generally People v Smart, 169 A.D.3d 1525, 1526 [4th Dept 2019]; People v Foster, 87 A.D.3d 299, 301 [2d Dept 2011], lv denied 18 N.Y.3d 858 [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 [4th Dept 2017]).