SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
234
KA 11-02057
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
NJERA A. WILSON, DEFENDANT-APPELLANT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered June 28, 2011. The judgment convicted
defendant, upon his plea of guilty, of assault in the second degree
(two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his guilty plea of two counts of assault in the second degree
(Penal Law § 120.05 [2]). Defendant contends that his attorney raised
potential defenses to both counts prior to the plea colloquy and that
his subsequent guilty plea therefore was not voluntarily, knowingly,
and intelligently entered. Although defendant’s contention survives
his waiver of the right to appeal, defendant failed to preserve his
contention for our review by failing to move to withdraw his guilty
plea or to vacate the judgment of conviction on that ground (see
People v McKeon, 78 AD3d 1617, 1618, lv denied 16 NY3d 799). “This is
not one of those rare cases ‘where the defendant’s recitation of the
facts underlying the crime[s] pleaded to clearly casts significant
doubt upon the defendant’s guilt or otherwise calls into question the
voluntariness of the plea[]’ to obviate the preservation requirement”
(People v Rodriguez, 17 AD3d 1127, 1129, lv denied 5 NY3d 768, quoting
People v Lopez, 71 NY2d 662, 666; see People v Davis, 45 AD3d 1357,
1358, lv denied 9 NY3d 1005).
Defendant’s further contention that County Court deviated from
its sentencing promise by issuing an order of protection is also
unpreserved for our review (see People v Smith, 294 AD2d 916, 916).
In any event, we conclude that it is without merit. “ ‘An order of
protection may properly be issued independent of a plea agreement’ . .
. and, although such an order is issued at sentencing, it is not a
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KA 11-02057
part of defendant’s sentence” (People v Lilley, 81 AD3d 1448, 1448, lv
denied 17 NY3d 860; see People v Nieves, 2 NY3d 310, 316; People v
Dixon, 16 AD3d 517, 517).
Entered: March 21, 2014 Frances E. Cafarell
Clerk of the Court