| People v Shaw |
| 2010 NY Slip Op 08389 [78 AD3d 1376] |
| November 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joshua L. Shaw,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), renderedAugust 25, 2008, convicting defendant upon his plea of guilty of the crime of criminal contempt in thefirst degree.
Defendant was indicted on three counts of criminal contempt in the first degree and, during juryselection for his trial on these charges, accepted the People's offer to plead guilty to the third count insatisfaction of the entire indictment and other pending matters. Thereafter, defendant was sentenced asa second felony offender to the agreed-upon prison term of 1½ to 3 years, and an order ofprotection was issued by County Court against defendant in favor of the victim. Defendant nowappeals.
Initially, we agree with defendant that he did not waive his right to appeal and, in fact, the Peopledid not request such a waiver at the time the plea agreement was accepted and the plea was entered.However, the fact that defendant did not waive his right to appeal has no bearing upon the issue ofwhether his guilty plea was knowingly, intelligently and voluntarily made. The right to appeal is "separateand distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]), and it is beyond cavil that a defendant can knowingly, intelligently and voluntarily enter a guiltyplea while still retaining the right to appeal, as we find defendant did here (see generally CPL450.10; People v Seaberg, 74 NY2d 1 [1989]).[*2]
Defendant finally contends that because the issuance of theorder of protection at sentencing was contrary to the plea agreement, he should be permitted towithdraw his plea or the order of protection should be annulled. This issue is unpreserved for ourreview due to his failure to object at the time of sentencing, although he had ample opportunity to do so(see People v Murray, 15 NY3d725, 727 [2010]; People v Snyder, 249 AD2d 643 [1998]).
Cardona, P.J., Mercure, Lahtinen and Stein, JJ., concur. Ordered that the judgment is affirmed,without costs.