People v Russell

2014 NY Slip Op 06451 [120 AD3d 1594]

September 26, 2014

Appellate Division, Fourth Department

As corrected through Wednesday, October 29, 2014

[*1]

The People of the State of New York,Respondent, v Gregory L. Russell, Appellant.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of counsel), fordefendant-appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.

Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges,J.), rendered November 4, 2013. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a weapon in the fourth degree.

It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the fourth degree (Penal Law § 265.01[2]), defendant contends that Supreme Court erred in issuing an order of protection infavor of two witnesses (see CPL 530.13 [4] [a]), i.e., the mother of defendant'schildren and their daughter. As a preliminary matter, we agree with defendant that hiswaiver of the right to appeal does not preclude us from considering his contentioninasmuch as the order of protection was "not a part of the plea agreement" (People v Lilley, 81 AD3d1448, 1448 [2011], lv denied 17 NY3d 860 [2011]), and is not a part of hissentence (see People vNieves, 2 NY3d 310, 316 [2004]; People v Tate, 83 AD3d 1467, 1467 [2011]). We note,however, that defendant failed to preserve his contention for our review by not objectingat sentencing to the issuance of the order of protection in favor of those two witnesses(see CPL 470.05 [2]; Nieves, 2 NY3d at 315-317; People v Collins, 117 AD3d1535, 1535 [2014]; Peoplev Loffler, 111 AD3d 1059, 1060-1061 [2013]; People v Sweeney, 106 AD3d841, 842 [2013]). In any event, we conclude that the contention lacks merit (seeCPL 530.13 [4] [a]; Peoplev Wilson, 115 AD3d 1229, 1229 [2014], lv denied 23 NY3d 969[2014]). Present—Smith, J.P., Fahey, Lindley, Valentino and DeJoseph, JJ.