Opinion
2014-03-21
The PEOPLE of the State of New York, Respondent, v. Njera A. WILSON, Defendant–Appellant.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, and SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his guilty plea of two counts of assault in the second degree (Penal Law § 120.05 [2] ). Defendant contends that his attorney raised potential defenses to both counts prior to the plea colloquy and that his subsequent guilty plea therefore was not voluntarily, knowingly, and intelligently entered. Although defendant's contention survives his waiver of the right to appeal, defendant failed to preserve his contention for our review by failing to move to withdraw his guilty plea or to vacate the judgment of conviction on that ground ( see People v. McKeon, 78 A.D.3d 1617, 1618, 910 N.Y.S.2d 623,lv. denied16 N.Y.3d 799, 919 N.Y.S.2d 515, 944 N.E.2d 1155). “This is not one of those rare cases ‘where the defendant's recitation of the facts underlying the crime[s] pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea[ ]’ to obviate the preservation requirement” ( People v. Rodriguez, 17 A.D.3d 1127, 1129, 794 N.Y.S.2d 543,lv. denied5 N.Y.3d 768, 801 N.Y.S.2d 263, 834 N.E.2d 1273, quoting People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;see People v. Davis, 45 A.D.3d 1357, 1358, 844 N.Y.S.2d 739,lv. denied9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879).
Defendant's further contention that County Court deviated from its sentencing promise by issuing an order of protection is also unpreserved for our review ( see People v. Smith, 294 A.D.2d 916, 916, 741 N.Y.S.2d 476). In any event, we conclude that it is without merit. “ ‘An order of protection may properly be issued independent of a plea agreement’ ... and, although such an order is issued at sentencing, it is not a part of defendant's sentence” ( People v. Lilley, 81 A.D.3d 1448, 1448, 917 N.Y.S.2d 494,lv. denied17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806;see People v. Nieves, 2 N.Y.3d 310, 316, 778 N.Y.S.2d 751, 811 N.E.2d 13;People v. Dixon, 16 A.D.3d 517, 517, 792 N.Y.S.2d 110).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.