| People v Lewis |
| 2010 NY Slip Op 00594 [69 AD3d 1232] |
| January 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Andrew B.Lewis, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Warren County (Hall, J.),rendered January 16, 2009, which revoked defendant's probation and, among other things,imposed a sentence of imprisonment.
In December 2007, defendant pleaded guilty to grand larceny in the fourth degree and wassentenced to a period of probation not to exceed one year. Subsequently, defendant was arrestedand charged with violating the terms of his probation after being arrested for an incident inwhich he forced his way into his wife's car with a crowbar, pulled her out of the vehicle, draggedher into the house, forcibly removed her clothes and pushed her into the shower.[FN1]He was also alleged to have violated the terms of his probation for failing to report as required tohis probation officer and for not making restitution to the victim of his grand larceny. Afterpleading guilty to these violations, defendant was sentenced to weekends in jail for athree-month period, his period of probation was extended to five years and an order of protectionwas issued barring [*2]him from having any contact with hiswife. Defendant's probationary sentence also required him to attend and successfully complete aprogram focusing on anger management.
Three months later, defendant was again arrested and this time charged with criminalcontempt in the second degree for having contact with his wife in violation of the order ofprotection.[FN2]He was also charged with violating probation by failing to successfully complete the angermanagement program as ordered by County Court. After defendant pleaded guilty to violatinghis probation and waived his right to appeal, he was sentenced to three years in prison and anorder of protection was again imposed, which barred him from having any contact with his wifeand required him to stay away from the marital residence. Defendant now appeals, arguing thathe was denied the effective assistance of counsel, his plea of guilty to the violation of probationwas not knowingly and voluntarily entered and the provision in the order of protection barringhim from having any contact with his wife constituted an abuse of the court's discretion.Inasmuch as these claims are either unpreserved or without merit, we now affirm.
Initially, we note that defendant waived his right to appeal and, since he has not claimed thatthis waiver was invalid, he may not now challenge the sentence imposed by County Court asbeing harsh or excessive (see People vAshley, 67 AD3d 1199 [2009]; People v Campbell, 67 AD3d 1125 [2009]; People v Hyson, 56 AD3d 890,892 [2008], lv denied 12 NY3d 758 [2009]). In addition, defendant has not moved towithdraw his plea or vacate the judgment of conviction. As a result, his challenge to thevoluntariness of his plea—while it survives the appeal waiver—is not preserved forour review (see People v Scitz, 67AD3d 1251 [2009]; People v Campbell, 67 AD3d at 1125; People v Dixon, 66 AD3d 1237,1237-1238 [2009]; People vMason, 66 AD3d 1225, 1227 [2009]). Moreover, nothing occurred during his pleaallocution that serves to cast doubt on his guilt or the voluntariness of his decision to admit toviolating the terms of his probation so as to come within the exception to the preservation rule(see People v Talmadge, 48 AD3d836, 836 [2008]).
Furthermore, an order of protection is not part of a sentence but, instead, is an " 'ameliorativemeasure' " that is incidental to it (Peoplev Hull, 52 AD3d 962, 963-964 [2008], quoting People v Nieves, 2 NY3d 310, 316 [2004]). Therefore, even ifdefendant, when he pleaded guilty, did not appreciate how restrictive the provisions imposed byCounty Court in its order of protection would be, such a claim cannot serve as a basis for thewithdrawal of his plea (see People vRubeo, 60 AD3d 1206, 1208 [2009]; People v Hull, 52 AD3d at 963; seealso CPL 530.12). In that regard, we note that defendant stated during his plea colloquy thathe understood that County Court, prior to imposing sentence, would take under consideration thePeople's request that an order of protection be issued that included a provision barring him fromhaving any contact with his wife.
In regard to defendant's claim that he did not receive the effective assistance of counsel, thisclaim is also unpreserved by his failure to move to withdraw his plea or vacate the judgment ofconviction (see People v Dixon, 66 AD3d at 1238; People v Dobrouch, 59 AD3d 781, 781[*3][2009], lv denied 12 NY3d 853 [2009]). In any event,during his colloquy with County Court, defendant acknowledged that he had conferred withcounsel before entering his plea and stated that he was satisfied with his representation. Inaddition, counsel vigorously argued against the issuance of an order of protection that barreddefendant from having contact with his wife and obtained for defendant a favorable pleaagreement that included a commitment by County Court to impose less than the maximumsentence. Under the circumstances, even if properly preserved, defendant's claim that he did notreceive meaningful representation is not supported by the record (see People v Thompson, 4 AD3d626, 627 [2004], lv denied 3 NY3d 649 [2004]).
Finally, we see no basis for modifying any of the terms contained in the order of protection.While we are aware that the wife opposed any order of protection that would bar defendant fromhaving contact with her, the underlying circumstances that led to the issuance of this order anddefendant's failure to successfully complete a court-mandated anger management programprovided ample justification for County Court's decision to issue the order of protection(compare People v Hull, 52 AD3d at 964).
Peters, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: As a result of this incident,defendant was charged with unlawful imprisonment and harassment in the second degree;however, the disposition of these charges is not immediately clear from the record.
Footnote 2: Defendant was also arrested andcharged with endangering the welfare of a child and other crimes, in regard to an allegation thathe had inappropriately touched a 16-year-old child.