| People v May |
| 2016 NY Slip Op 03197 [138 AD3d 1146] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Antoine May, Appellant. |
John P. Savoca, Yorktown Heights, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Jennifer Spencer andSteven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Cacace, J.), rendered May 27, 2014, convicting him of attempted course of sexualconduct against a child in the first degree, upon his plea of guilty, and imposing sentence.The appeal brings up for review an order of protection issued at the time ofsentencing.
Ordered that the judgment is affirmed.
The defendant contends that his plea of guilty was not knowing, voluntary, orintelligent because the Supreme Court failed to advise him of all of his constitutionalrights under Boykin v Alabama (395 US 238 [1969]), and because there was noindication in the record that he consulted with his attorney about the consequences of theplea. While the defendant validly waived his right to appeal (see People v Sanders, 25 NY3d337 [2015]; People vLopez, 6 NY3d 248, 256 [2006]), his contentions concerning the voluntarinessof his plea of guilty survive his appeal waiver (see People v Seaberg, 74 NY2d 1,10 [1989]; People vMurphy, 114 AD3d 704, 705 [2014]; People v Joseph, 103 AD3d 665 [2013]). However, thisissue is unpreserved for appellate review, since the defendant failed to move to vacate hisplea prior to the imposition of sentence or otherwise raise the issue in the Supreme Court(see People v Sirico, 135AD3d 19, 22 [2015]; People v Isaiah S., 130 AD3d 1081, 1081-1082 [2015]; People v Bennett, 122 AD3d871, 872 [2014]). In any event, the defendant's contentions are belied by the record.The record reveals that the court advised the defendant of his Boykin rights andother constitutional rights he was forfeiting by pleading guilty (see People vSirico, 135 AD3d at 22; People v Isaiah S., 130 AD3d at 1082; People v Jackson, 114 AD3d807, 807-808 [2014]). Furthermore, the defendant acknowledged that he hadsufficient time to discuss this matter with his attorney, and the defendant's attorneyacknowledged that he had discussed certain potential consequences of the plea of guiltywith the defendant. We find that the record as a whole affirmatively demonstrates that thedefendant entered his plea of guilty knowingly and voluntarily (see People v Conceicao, 26NY3d 375, 382-383 [2015]; People v Harris, 61 NY2d 9, 19-20[1983]).
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontention that the sentence imposed was excessive (see People v Seaberg, 74NY2d at 9).
The defendant's contentions concerning so much of an order of protection issued at[*2]the time of sentencing as was in favor of hisbiological children survive his appeal waiver (see People v Kumar, 127 AD3d 882, 883 [2015]; People v Sabo, 117 AD3d1089 [2014]; People vLilley, 81 AD3d 1448 [2011]). However, the defendant failed to preserve forappellate review his contention that the Supreme Court should not have issued so muchof the order of protection as was in favor of his biological children because he failed toobject to the order of protection at sentencing or move to amend the order on this ground(see CPL 470.05 [2]; People v Nieves, 2 NY3d 310, 316-318 [2004]; People v O'Connor, 136 AD3d945 [2016]; People vSweeney, 106 AD3d 841, 842 [2013]; People v Khan, 101 AD3d 903 [2012]). In any event, theinclusion of the defendant's biological children in the order of protection was authorizedby CPL 530.13 (4) (B), and was appropriate, since they were members of the victim'sfamily and household (see People v Warren, 280 AD2d 75, 77 [2001]). Mastro,J.P., Dillon, Hinds-Radix and Maltese, JJ., concur.