| People v Loffler |
| 2013 NY Slip Op 07768 [111 AD3d 1059] |
| November 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v LeeA. Loffler, Appellant. |
—[*1] Johanne Sullivan, Special Prosecutor, Alexandria Bay, for respondent.
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 thecrime of criminal possession of a controlled substance in the fifth degree.
Following an altercation with his girlfriend, defendant was charged in a felonycomplaint with criminal possession of a controlled substance in the third degreeand—in a related misdemeanor information—with assault in the thirddegree. Defendant waived indictment and agreed to be prosecuted by a superior courtinformation charging him with one count of criminal possession of a controlledsubstance in the third degree.[FN*]Defendant thereafter waived his right to appeal and pleaded guilty to one count ofcriminal possession of a controlled substance in the fifth degree. During the course of thesentencing proceeding, the People asked for a no-contact order of protection in favor ofdefendant's girlfriend. Defendant raised no objection to the issuance of the order ofprotection and took no position with respect to the duration thereof, asking only thatCounty Court consider issuing a no-harassment order of protection instead. County Courtsentenced defendant as a second felony offender to a prison term of three years, followedby 1½ years of postrelease supervision, and issued a no-contact order of protectionin [*2]favor of defendant's girlfriend—set to expireon November 1, 2024. This appeal by defendant ensued.
We affirm. Although defendant's challenge to the validity and duration of theunderlying order of protection survives his waiver of the right to appeal (see People v Smith, 83 AD3d1213, 1213 [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, 2NY3d 569, 572-574 [2004]; People v Ellison, 106 AD3d 419, 420 [2013], lvdenied 21 NY3d 1004 [2013]; People v Trombley, 91 AD3d 1197, 1200 [2012], lvdenied 21 NY3d 914 [2013]). Accordingly, having raised no objection at the time ofsentencing, defendant's assertion that County Court erred in issuing the order ofprotection in the first instance (see People v Nieves, 2 NY3d 310, 315-317 [2004]; People v Morris, 82 AD3d908, 909-910 [2011], lv denied 17 NY3d 808 [2011]) and in fixing theduration thereof (see People vSaid, 105 AD3d 1392, 1393 [2013], lv denied 21 NY3d 1019 [2013];People v Khan, 101 AD3d903, 903 [2012], lv denied 20 NY3d 1100 [2013]; People v Nickel, 97 AD3d983, 984 [2012], lv denied 20 NY3d 1013 [2013]; People v Maxineau, 78 AD3d732, 732 [2010], lv denied 16 NY3d 744 [2011]), as well as defendant'sclaim that the subject order was not part of the underlying plea agreement (see People v Myers, 46 AD3d1028, 1029 [2007], lv denied 10 NY3d 814 [2008]; People v Reid, 21 AD3d1215, 1216 [2005]), have not been preserved for our review. Finally, given theparticular facts of this case, we decline defendant's invitation to exercise our interest ofjustice jurisdiction to take corrective action.
Lahtinen, J.P., Stein and Spain, JJ., concur. Ordered that judgment is affirmed.
Footnote *: The record fails toreflect the disposition of the assault charge.