People v. Kennedy ( 2017 )

People v Kennedy (2017 NY Slip Op 05242)

People v Kennedy

2017 NY Slip Op 05242

Decided on June 28, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 28, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
L. PRISCILLA HALL
JEFFREY A. COHEN
HECTOR D. LASALLE
FRANCESCA E. CONNOLLY, JJ.

2015-05500
(Ind. No. 6146/14)

[*1]The People of the State of New York, respondent,

v

Tyshawn Kennedy, appellant.

Lynn W. L. Fahey, New York, NY (Ronald Zapata of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Amy Appelbaum, and Arieh Schulman of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from so much of a sentence of the Supreme Court, Kings County (Foley, J.), imposed June 15, 2015, upon his plea of guilty, as issued an order of protection to remain in effect until June 14, 2028.

ORDERED that the sentence is affirmed insofar as appealed from.

While the defendant validly waived his right to appeal (see People v Lopez, 6 NY3d 248, 256; People v Brown, 122 AD3d 133, 141), his contentions concerning the validity of an order of protection issued at the time of sentencing survive his appeal waiver (see People v Bernardini, 142 AD3d 671, 672; People v Kumar, 127 AD3d 882, 883; People v Cedeno, 107 AD3d 734, 734). However, those contentions are unpreserved for appellate review, since he did not raise them at sentencing or move to amend the final order of protection (see CPL 470.05[2]; People v Nieves, 2 NY3d 310, 316-318; People v O'Connor, 136 AD3d 945, 945; People v Fortier, 130 AD3d 642, 643), and we decline to reach them in the exercise of our interest of justice jurisdiction (see People v Bernardini, 142 AD3d at 672; People v Kumar, 127 AD3d at 883).

ENG, P.J., HALL, COHEN, LASALLE and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court