SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
551
KA 10-01753
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JAMES A. MCCOY, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Stephen T.
Miller, A.J.), rendered July 1, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal contempt in the first degree (Penal Law §
215.51 [b] [v]), defendant correctly contends that his waiver of the
right to appeal was invalid. Although defendant concedes that he
signed a written waiver of his right to appeal, “there was no colloquy
between County Court and defendant regarding the waiver of the right
to appeal to ensure that it was knowingly, voluntarily and
intelligently entered” (People v Carno, 101 AD3d 1663, 1664, lv denied
20 NY3d 1060; see People v Callahan, 80 NY2d 273, 283; People v Grant,
83 AD3d 862, 862-863, lv denied 17 NY3d 795).
Defendant further contends that the permanent order of protection
is invalid because the court failed to articulate on the record its
reasons for issuing the order pursuant to CPL 530.12 (5). Although
that contention is properly before us in light of defendant’s invalid
waiver of the right to appeal, we conclude that it is not preserved
for our review inasmuch as defendant failed to object to the order of
protection at sentencing (see People v Decker, 77 AD3d 675, 675, lv
denied 15 NY3d 952; see also People v Nieves, 2 NY3d 310, 316), and we
decline to exercise our power to review it as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]).
Entered: June 7, 2013 Frances E. Cafarell
Clerk of the Court