| People v Sanford |
| 2019 NY Slip Op 03111 [171 AD3d 1405] |
| April 25, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joshua M. Sanford, Appellant. |
Henry C. Meier, Delmar, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Eliese R. Herzl-Betz of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Chemung County (Baker, J.),rendered August 14, 2017, convicting defendant upon his plea of guilty of the crime of criminalcontempt in the second degree.
In connection with an incident in which defendant entered a residence in violation of an orderof protection issued by the Elmira City Court in 2015, defendant was charged by indictment withcriminal contempt in the first degree. Pursuant to a plea agreement, defendant pleaded guilty tothe reduced charge of criminal contempt in the second degree, a misdemeanor, in satisfaction ofthe indictment. Consistent with the agreement, County Court imposed a one-year jail term andissued an order of protection in favor of the victim. Defendant appeals.
Defendant argues that his guilty plea was not knowing, voluntary and intelligent on theground that he did not fully understand that a final order of protection would be issued as a partof the plea agreement. However, this claim is unpreserved for our review, as defendant did not atany point object to the issuance of a final order of protection or move to withdraw his guilty pleaprior to the imposition of sentence (seePeople v Williams, 27 NY3d 212, 214, 219-220 [2016]; People v Nieves, 2 NY3d 310,316-317 [2004]; People v Toxey, 86 NY2d 725, 726 [1995]; People v Clark, 155 AD3d 1184,1185 [2017]). Moreover, defendant was advised three times during the plea proceeding that afinal order of protection was a condition of the plea agreement, which the People reiterated twiceat the outset of the sentencing proceeding when they presented the order to the court to beexecuted. Thus, defendant had every opportunity to seek clarification of this matter or object tothis condition, but failed to do so (see People v Williams, 27 NY3d at 221-223; People v Peque, 22 NY3d 168,182-183 [2013], cert denied 574 US &mdash, 135 S Ct 90 [2014]).
In addition, the People confirmed at sentencing that the victim wanted the order of protectionand, when defense counsel requested an inquiry of the victim, County Court made itunequivocally clear that it was issuing the final order of protection consistent with the terms ofthe plea agreement. Contrary to defendant's claim, although the court indicated that it wouldentertain a postsentencing request to modify the final order of protection (see CPL 530.12[15]), the court's remarks did not obfuscate the finality of the order of protection that it wasissuing or make any representation suggesting that the court would lift or modify the final orderof protection so as to induce defendant to proceed with sentencing. Moreover, the record reflectsthat defendant was aware that the order of protection would be issued in favor of the victim ofthe crime to which he was pleading guilty, who was also the protected person in the 2015 finalorder of protection that he admitted violating. Defendant does not challenge the lawfulness of theterms of the order of protection (cf.People v Surdis, 160 AD3d 1305, 1306 [2018], lv denied 32 NY3d 941 [2018];People v Clark, 155 AD3d at 1185-1186).
Finally, an order of protection issued incident to a criminal action is not punitive and is not acomponent of a sentence but, rather, "is an ameliorative measure intended to safeguard the rightsof victims and witnesses" (People v Nieves, 2 NY3d at 316). As such, an order ofprotection and its terms are not a direct consequence of a guilty plea of which a defendant mustbe advised (see People v Harnett, 16NY3d 200, 205-206 [2011]; Peoplev Gravino, 14 NY3d 546, 553-559 [2010]; cf. People v Catu, 4 NY3d 242, 244 [2005]). Nor are we persuaded that the terms of an order ofprotection, "although collateral for purposes of due process," are of "such great importance" as tofall within the "rare" exception requiring that they be disclosed during the plea allocution(People v Gravino, 14 NY3d at 559; accord People v Harnett, 16 NY3d at 207;cf. People v Peque, 22 NY3d at 184-185). Defendant's challenge to the agreed-uponsentence as harsh and excessive is moot as it appears that he has completed serving the sentence(see People v Burks, 163 AD3d1268, 1268 [2018]), and his remaining claims have been examined and determined to lackmerit.
Lynch, Clark, Mulvey and Devine, JJ., concur. Ordered that the judgment is affirmed.