People v. Warren , 2023 NY Slip Op 06667 ( 2023 )

People v Warren (2023 NY Slip Op 06667)

People v Warren

2023 NY Slip Op 06667

Decided on December 22, 2023

Appellate Division, Fourth 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 December 22, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, OGDEN, AND DELCONTE, JJ.

947 KA 21-00399

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

ERIK J. WARREN, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (LEAH N. FARWELL OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Orleans County Court (Sanford A. Church, J.), rendered December 12, 2019. The judgment convicted defendant, upon his plea of guilty, of reckless assault of a child.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of reckless assault of a child (Penal Law

§ 120.02). As defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid (see People v Thomas, 34 NY3d 545, 564-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]) and thus does not preclude our review of his challenge to the severity of his sentence (see People v Martin, 213 AD3d 1299, 1299-1300 [4th Dept 2023]). Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Defendant did not preserve his contention regarding the order of protection issued at sentencing (see People v Nieves, 2 NY3d 310, 315-317 [2004]; see generally People v Smart, 169 AD3d 1525, 1526 [4th Dept 2019]; People v Foster, 87 AD3d 299, 301 [2d Dept 2011], lv denied 18 NY3d 858 [2011]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3]; see also People v Storms, 147 AD3d 1341, 1341 [4th Dept 2017]).

Entered: December 22, 2023

Ann Dillon Flynn

Clerk of the Court