Opinion
542 KA 18-00616
06-12-2020
The PEOPLE of the State of New York, Respondent, v. Tyrone JENKINS, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., TROUTMAN, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the order of protection issued in favor of the complainant and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). Contrary to defendant's contention, his waiver of the right to appeal was knowing, voluntary, and intelligent. At the plea proceeding, defendant acknowledged that he spoke with his attorney about the meaning of the waiver and stated that he understood the rights he was waiving. While the language of the plea colloquy was overbroad, it was coupled with clarifying language in the written waiver stating that certain issues are not covered by the appeal waiver, including the legality of the sentence and plea (see People v. Thomas , 34 N.Y.3d 545, 564, 144 N.E.3d 970 [2019] ). Defendant's valid waiver of the right to appeal encompasses his challenge to Supreme Court's suppression ruling (see People v. Sanders , 25 N.Y.3d 337, 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). To the extent that defendant's claim that he was denied effective assistance of counsel at the suppression hearing survives his guilty plea and valid waiver of the right to appeal (see People v. Wingfield , 181 A.D.3d 1253, 1253-1254, 120 N.Y.S.3d 671 [4th Dept. 2020] ; see generally People v. Yates , 173 A.D.3d 1849, 1850, 103 N.Y.S.3d 728 [4th Dept. 2019] ), we conclude that it lacks merit (see People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Defendant further contends that the court erred in issuing an order of protection in favor of the complainant. As a preliminary matter, we agree with defendant that his waiver of the right to appeal does not preclude us from considering his contention inasmuch as the order of protection was "not a part of the plea agreement" ( People v. Lilley , 81 A.D.3d 1448, 1448, 917 N.Y.S.2d 494 [4th Dept. 2011], lv denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011] ) and is not a part of his sentence (see People v. Nieves , 2 N.Y.3d 310, 316, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ). At the time of the plea, the People indicated that they would not seek an order of protection and the complainant, defendant's girlfriend, did not request such relief. Under the circumstances of this case, we agree with defendant that the court abused its discretion in issuing an order of protection (see generally People v. Monacelli , 299 A.D.2d 916, 916, 750 N.Y.S.2d 690 [4th Dept. 2002], lv denied 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174 [2003] ), and we therefore modify the judgment accordingly.