| People v Harder |
| 2019 NY Slip Op 08080 [177 AD3d 1336] |
| November 8, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Stephen G. Harder, Appellant. |
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-appellant.
Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of counsel), forrespondent.
Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.),rendered September 21, 2017. The judgment convicted defendant, upon his plea ofguilty, of attempted course of sexual conduct against a child in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of attempted course of sexual conduct against a child in the second degree (PenalLaw §§ 110.00, 130.80). Contrary to defendant's contention, therecord establishes that he validly waived his right to appeal. County Court engageddefendant in "an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice" (People v Suttles, 107 AD3d 1467, 1468 [4th Dept 2013],lv denied 21 NY3d 1046 [2013] [internal quotation marks omitted]; see People v Lopez, 6 NY3d248, 256 [2006]), and the record reflects that defendant "understood that the waiverof the right to appeal was 'separate and distinct from those rights automatically forfeitedupon a plea of guilty' " (People v Graham, 77 AD3d 1439, 1439 [4th Dept 2010],lv denied 15 NY3d 920 [2010], quoting Lopez, 6 NY3d at 256; see People v Alfiere, 156AD3d 1446, 1446 [4th Dept 2017], lv denied 31 NY3d 980 [2018]). Inaddition, defendant's oral waiver of the right to appeal was accompanied by a writtenwaiver stating that he understood that he was waiving "all rights to appeal from [his]judgment of conviction and [his] sentence" (see People v Ramos, 7 NY3d 737, 738 [2006]; People v Eaton, 151 AD3d1950, 1951 [4th Dept 2017]).
Defendant's valid waiver of the right to appeal with respect to both the convictionand sentence forecloses his challenge to the severity of his sentence (see Lopez, 6NY3d at 255-256; cf. People vMaracle, 19 NY3d 925, 928 [2012]).
Defendant further contends that the court erred in issuing a permanent order ofprotection in favor of his younger daughter, who was not the victim of the crime. As apreliminary matter, and as the People correctly concede, "the waiver by defendant of theright to appeal does not encompass his contentions concerning the order[ ] of protection"(People v Victor, 20 AD3d927, 928 [4th Dept 2005], lv denied 5 NY3d 833 [2005], denied uponreconsideration 5 NY3d 885 [2005]; see generally People v Tate, 83 AD3d 1467, 1467 [4thDept 2011]). Nevertheless, defendant's contention lacks merit. Defendant was convictedof sexually abusing his older daughter, and CPL 530.12 (5) (a) provides that, uponsentencing on a conviction for any crime between a parent and child, a court may issuean order of protection directing defendant to "stay away from the home, school, businessor place of employment of . . . any witness designated by the court." Here,the court concluded that the younger daughter was scheduled to be a witness atdefendant's trial, and thus the court properly granted the order of protection on thatground. We have considered defendant's remaining contention and conclude that it doesnot require reversal or modification of the judgment. Present—Smith, J.P.,Peradotto, DeJoseph, NeMoyer and Winslow, JJ.