Opinion
1062 17–02140
11-08-2019
The PEOPLE of the State of New York, Respondent, v. Stephen G. HARDER, Defendant–Appellant.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT–APPELLANT. DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT–APPELLANT.
DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER 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 attempted course of sexual conduct against a child in the second degree ( Penal Law §§ 110.00, 130.80 ). Contrary to defendant's contention, the record establishes that he validly waived his right to appeal. County Court engaged defendant in "an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Suttles, 107 A.D.3d 1467, 1468, 965 N.Y.S.2d 904 [4th Dept. 2013], lv denied 21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013] [internal quotation marks omitted]; see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), and the record reflects that defendant "understood that the waiver of the right to appeal was ‘separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Graham, 77 A.D.3d 1439, 1439, 908 N.Y.S.2d 490 [4th Dept. 2010], lv denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813 [2010], quoting Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Alfiere, 156 A.D.3d 1446, 1446, 65 N.Y.S.3d 835 [4th Dept. 2017], lv denied 31 N.Y.3d 980, 77 N.Y.S.3d 658, 102 N.E.3d 435 [2018] ). In addition, defendant's oral waiver of the right to appeal was accompanied by a written waiver stating that he understood that he was waiving "all rights to appeal from [his] judgment of conviction and [his] sentence" (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ; People v. Eaton, 151 A.D.3d 1950, 1951, 54 N.Y.S.3d 903 [4th Dept. 2017] ).
Defendant's valid waiver of the right to appeal with respect to both the conviction and sentence forecloses his challenge to the severity of his sentence (see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ).
Defendant further contends that the court erred in issuing a permanent order of protection in favor of his younger daughter, who was not the victim of the crime. As a preliminary matter, and as the People correctly concede, "the waiver by defendant of the right to appeal does not encompass his contentions concerning the order[ ] of protection" ( People v. Victor, 20 A.D.3d 927, 928, 799 N.Y.S.2d 843 [4th Dept. 2005], lv denied 5 N.Y.3d 833, 804 N.Y.S.2d 48, 837 N.E.2d 747 [2005], reconsideration denied 5 N.Y.3d 885, 808 N.Y.S.2d 588, 842 N.E.2d 486 [2005] ; see generally People v. Tate, 83 A.D.3d 1467, 1467, 919 N.Y.S.2d 919 [4th Dept. 2011] ). Nevertheless, defendant's contention lacks merit. Defendant was convicted of sexually abusing his older daughter, and CPL 530.12(5)(a) provides that, upon sentencing on a conviction for any crime between a parent and child, a court may issue an order of protection directing defendant to "stay away from the home, school, business or place of employment of ... any witness designated by the court." Here, the court concluded that the younger daughter was scheduled to be a witness at defendant's trial, and thus the court properly granted the order of protection on that ground. We have considered defendant's remaining contention and conclude that it does not require reversal or modification of the judgment.