Peoplev.Elgut

Supreme Court, Appellate Division, Second Department, New York.Sep 19, 2018
83 N.Y.S.3d 330 (N.Y. App. Div. 2018)
83 N.Y.S.3d 330164 A.D.3d 1360

2017–06901 Ind. No. 70/16

09-19-2018

The PEOPLE, etc., respondent, v. Christopher ELGUT, appellant.

Mark Diamond, New York, NY, for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Timothy P. Finnerty of counsel), for respondent.


Mark Diamond, New York, NY, for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Timothy P. Finnerty of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mark D. Cohen, J.), rendered May 1, 2017, convicting him of sexual abuse in the first degree (two counts), sexual abuse in the second degree (two counts), sexual abuse in the third degree (two counts), endangering the welfare of a child, and unlawful possession of marihuana, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The defendant's valid waiver of his right to appeal forecloses appellate review of his challenge to the factual sufficiency of his plea allocution (see People v. Smith, 146 A.D.3d 904, 904, 44 N.Y.S.3d 771 ; People v. Thompson, 143 A.D.3d 1007, 1008, 39 N.Y.S.3d 800 ).

The defendant's contention that his plea was not knowingly, voluntarily, and intelligently entered because the County Court did not adequately inform him of the Sex Offender Registration Act (see Correction Law art 6–C) consequences of his plea survives his valid waiver of the right to appeal (see People v. Bernardini, 142 A.D.3d 671, 671, 36 N.Y.S.3d 827 ; People v. Vere, 44 A.D.3d 690, 691, 843 N.Y.S.2d 378 ). However, the defendant's contention is not preserved for appellate review, as he did not move to withdraw his plea or otherwise raise this issue before the County Court (see People v. Magnotta, 137 A.D.3d 1303, 1303, 27 N.Y.S.3d 403 ; see also People v. Christian, 156 A.D.3d 716, 716, 64 N.Y.S.3d 909 ). We decline to review this issue in the exercise of our interest of justice jurisdiction.

The defendant's contention that the sentences imposed upon his convictions of sexual abuse in the third degree (two counts) and unlawful possession of marihuana were illegal survives his valid waiver of the right to appeal (see People v. Jackson, 153 A.D.3d 726, 726–727, 57 N.Y.S.3d 891 ; People v. Medina, 151 A.D.3d 1082, 1082–1083, 57 N.Y.S.3d 524 ). However, the defendant's challenges to the sentences imposed on the foregoing counts, which were made to run concurrently with the greater sentences he received upon his convictions of sexual abuse in the first degree (two counts), have been rendered academic because he has already fully served the challenged sentences (see People v. Anderson, 168 A.D.2d 624, 625, 563 N.Y.S.2d 463 ; see also People v. Cole, 144 A.D.3d 699, 700, 39 N.Y.S.3d 807 ; People v. Nicholson, 31 A.D.3d 468, 469, 817 N.Y.S.2d 638 ).

The defendant's contentions concerning the validity of an order of protection entered at the time of sentencing survive his valid waiver of the right to appeal (see People v. Cedeno, 107 A.D.3d 734, 965 N.Y.S.2d 887 ; see also People v. Bernardini, 142 A.D.3d at 672, 36 N.Y.S.3d 827 ; People v. Kumar, 127 A.D.3d 882, 883, 4 N.Y.S.3d 900 ). However, the defendant's contentions are unpreserved for appellate review, since he did not raise these issues at sentencing or move to amend the final order of protection (see People v. O'Connor, 136 A.D.3d 945, 24 N.Y.S.3d 918 ; People v. Kumar, 127 A.D.3d at 883, 4 N.Y.S.3d 900 ; see also People v. Fortier, 130 A.D.3d 642, 643, 12 N.Y.S.3d 283 ). We decline to reach the defendant's contentions regarding the order of protection in the exercise of our interest of justice jurisdiction, as "the better practice—and best use of judicial resources—is for a defendant seeking adjustment of [an order of protection] to request relief from the issuing court in the first instance, resorting to the appellate courts only if necessary" ( People v. Nieves, 2 N.Y.3d 310, 317, 778 N.Y.S.2d 751, 811 N.E.2d 13 ).

MASTRO, J.P., DILLON, LASALLE and CONNOLLY, JJ., concur.