| People v Wilson |
| 2014 NY Slip Op 01899 [115 AD3d 1229] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v NjeraA. Wilson, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered June 28, 2011. The judgment convicted defendant, upon his plea of guilty, ofassault in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guiltyplea of two counts of assault in the second degree (Penal Law § 120.05 [2]).Defendant contends that his attorney raised potential defenses to both counts prior to theplea colloquy and that his subsequent guilty plea therefore was not voluntarily,knowingly, and intelligently entered. Although defendant's contention survives hiswaiver of the right to appeal, defendant failed to preserve his contention for our reviewby failing to move to withdraw his guilty plea or to vacate the judgment of conviction onthat ground (see People vMcKeon, 78 AD3d 1617, 1618 [2010], lv denied 16 NY3d 799 [2011])."This is not one of those rare cases 'where the defendant's recitation of the factsunderlying the crime[s] pleaded to clearly casts significant doubt upon the defendant'sguilt or otherwise calls into question the voluntariness of the plea[ ]' to obviate thepreservation requirement" (People v Rodriguez, 17 AD3d 1127, 1129 [2005], lvdenied 5 NY3d 768 [2005], quoting People v Lopez, 71 NY2d 662, 666[1988]; see People v Davis,45 AD3d 1357, 1358 [2007], lv denied 9 NY3d 1005 [2007]).
Defendant's further contention that County Court deviated from its sentencingpromise by issuing an order of protection is also unpreserved for our review (seePeople v Smith, 294 AD2d 916, 916 [2002]). In any event, we conclude that it iswithout merit. " 'An order of protection may properly be issued independent of a pleaagreement' . . . and, although such an order is issued at sentencing, it is nota part of defendant's sentence" (People v Lilley, 81 AD3d 1448, 1448 [2011], lvdenied 17 NY3d 860 [2011]; see People v Nieves, 2 NY3d 310, 316 [2004]; People v Dixon, 16 AD3d517, 517 [2005]). Present—Scudder, P.J., Smith, Carni, Lindley and Sconiers,JJ.