| People v Jenkins |
| 2020 NY Slip Op 03340 [184 AD3d 1150] |
| June 12, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Tyrone Jenkins, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.),rendered January 29, 2018. The judgment convicted defendant upon his plea of guilty of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the order of protection issued in favor of the complainant and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]).Contrary to defendant's contention, his waiver of the right to appeal was knowing, voluntary, andintelligent. At the plea proceeding, defendant acknowledged that he spoke with his attorney aboutthe meaning of the waiver and stated that he understood the rights he was waiving. While thelanguage of the plea colloquy was overbroad, it was coupled with clarifying language in thewritten waiver stating that certain issues are not covered by the appeal waiver, including thelegality of the sentence and plea (seePeople v Thomas, 34 NY3d 545, 564 [2019]). Defendant's valid waiver of the right toappeal encompasses his challenge to Supreme Court's suppression ruling (see People v Sanders, 25 NY3d337, 342 [2015]). To the extent that defendant's claim that he was denied effective assistanceof counsel at the suppression hearing survives his guilty plea and valid waiver of the right toappeal (see People v Wingfield, 181AD3d 1253, 1253-1254 [4th Dept 2020]; see generally People v Yates, 173 AD3d 1849, 1850 [4th Dept2019]), we conclude that it lacks merit (see People v Caban, 5 NY3d 143, 152 [2005]).
Defendant further contends that the court erred in issuing an order of protection in favor ofthe complainant. As a preliminary matter, we agree with defendant that his waiver of the right toappeal does not preclude us from considering his contention inasmuch as the order of protectionwas "not a part of the plea agreement" (People v Lilley, 81 AD3d 1448, 1448 [4th Dept 2011], lvdenied 17 NY3d 860 [2011]) and is not a part of his sentence (see People v Nieves, 2 NY3d 310,316 [2004]). At the time of the plea, the People indicated that they would not seek an order ofprotection and the complainant, defendant's girlfriend, did not request such relief. Under thecircumstances of this case, we agree with defendant that the court abused its discretion in issuingan order of protection (see generally People v Monacelli, 299 AD2d 916, 916 [4th Dept2002], lv denied 99 NY2d 617 [2003]), and we therefore modify the judgmentaccordingly. Present—Smith, J.P., Troutman, Winslow, Bannister and DeJoseph,JJ.