| People v Allen |
| 2009 NY Slip Op 05474 [64 AD3d 1190] |
| July 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Sidney Allen,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedFebruary 11, 2008. The judgment convicted defendant, upon his plea of guilty, of unlawfulsurveillance in the second degree and endangering the welfare 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 ofunlawful surveillance in the second degree (Penal Law § 250.45 [3] [a]) and endangeringthe welfare of a child (§ 260.10 [1]). We agree with defendant that he did not validlywaive his right to appeal. "County Court's single reference to defendant's right to appeal isinsufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensurethat the waiver of the right to appeal was a knowing and voluntary choice" (People v Thousand, 41 AD3d1272, 1273 [2007], lv denied 9 NY3d 927 [2007] [internal quotation marksomitted]). Even a valid waiver of the right to appeal, however, would not encompass thecontention of defendant that the court failed to take into account the jail time credit to which heis entitled in setting the duration of the orders of protection (see People v Victor, 20 AD3d 927 [2005], lv denied 5NY3d 833, 855 [2005]). Defendant failed to preserve that contention for our review (see People v Nieves, 2 NY3d 310,315-317 [2004]), however, and we decline to exercise our power to review it as a matter ofdiscretion in the interest of justice (seePeople v Edwards, 59 AD3d 980 [2009]). Contrary to the further contention ofdefendant, the court properly concluded, after considering "the nature and circumstances of thecrime and . . . the history and character of the defendant, . . . that [his]registration [as a sex offender] would [not] be unduly harsh and inappropriate" (Correction Law§ 168-a [2] [e]). Present—Martoche, J.P., Centra, Peradotto, Green and Gorski, JJ.