People v Lightfoot (William)

[*1] People v Lightfoot (William) 2014 NY Slip Op 50406(U) Decided on March 10, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 10, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and MARANO, JJ
2012-1248 N CR.

The People of the State of New York, Respondent,

against

William A. Lightfoot, Jr., Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Tricia M. Ferrell, J.), rendered March 13, 2012. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the second degree. The appeal brings up for review an order of protection issued at the time of sentencing.

ORDERED that the judgment of conviction is affirmed.

On August 3, 2011, the People charged defendant with harassment in the second degree (Penal Law § 240.26 [1]) for slapping his spouse in the face. At defendant's arraignment, a stay-away order of protection issued on the spouse's behalf. On August 20, 2011, following defendant's threats of physical harm to his spouse, the People charged defendant with criminal contempt in the second degree (Penal Law § 215.50 [3]) for violating that order, resisting arrest (Penal Law § 205.30) and criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]). On September 16, 2011, defendant pleaded guilty to criminal contempt in the second degree, disorderly conduct (Penal Law § 240.20 [7]), and harassment in the second degree in satisfaction of the pending charges. On October 28, 2011, at the request of defendant's spouse, the District Court modified the order of protection by deleting the stay-away provision.

On November 2, 2011, after defendant threatened his spouse and their son with physical harm, the People again charged defendant with criminal contempt in the second degree. On January 10, 2012, pursuant to a negotiated plea and sentencing agreement, defendant pleaded guilty to criminal contempt in the second degree with the understanding that, if he completed a six-month treatment program, the plea would be vacated and defendant would be permitted to plead guilty to a class B misdemeanor "with a year of probation . . . [and] an order of protection to be determined at sentence." If defendant failed to complete the program, defendant would be sentenced to eight months' incarceration and a stay-away order of protection would issue in favor of defendant's spouse. Defendant failed to complete the treatment program and, on March 13, 2012, defendant was sentenced according to the terms of the second plea agreement, and to concurrent terms of incarceration on the charges to which he had previously entered guilty pleas. An order of protection issued on defendant's spouse's behalf, over the objection of both defendant and his spouse. On appeal, defendant contends that an order of protection was not a part of the plea agreement, that it was unjustified on the facts, that it issued in violation of his due process rights to a hearing on the order, and that, in any event, the five-year order of protection is unduly harsh and excessive. For the reasons that follow, the judgment of conviction is affirmed.

Although a permanent order of protection issued at sentencing is reviewable upon an appeal from a judgment of conviction (People v Nieves, 2 NY3d 310, 312 [2004]), defendant's claims that the imposition of the order of protection violated the plea agreement is not preserved for appellate review (CPL 470.05 [2]; People v Peters, 232 AD2d 432 [1996]). Defendant did not comment when the District Court made reference to such an order in a proceeding prior to sentencing and, at sentencing, defendant did not object that the imposition of an order of [*2]protection was not a part of the plea agreement, only that a "do not harass" order in lieu of a stay-away order would be appropriate. With respect to the order's duration, defendant expressed no surprise or complaint when the District Court announced the order's terms and made no motion to amend the order (see e.g. People v Nieves, 2 NY3d at 317; People v Cedeno, 107 AD3d 734 [2013]; People v Sweeney, 106 AD3d 841, 842 [2013]; People v Remington, 90 AD3d 678 [2011]), the duration of which is authorized by statute (CPL 530.14 [4] [B] [ii]). Defendant's claim that his due process rights were violated when the District Court relied on inadequate information to impose the five-year term is also not preserved for appellate review (e.g. People v Kello, 96 NY2d 740, 743 [2001]; People v Collins, 109 AD3d 482, 482-483 [2013]; People v Smith, 95 AD3d 1145, 1146 [2012]; People v MacKenzie, 9 Misc 3d 129[A], 2005 NY Slip Op 51535[U], *1 [App Term, 9th & 10th Jud Dists 2005]).

Were we to review the unpreserved claim in the interest of justice, we would find no error. An order of protection may be imposed over the objection of the person in whose favor the order issues (People v Lewis, 69 AD3d 1232, 1235 [2010]; People v Goldberg, 16 AD3d 519, 520 [2005]), and even where a plea agreement contains no provision for such an order (see CPL 530.13 [4]; People v Margillo, 69 AD3d 655, 656 [2010]; People v Dixon, 16 AD3d 517 [2005]; People v Peters, 232 AD2d 432; People v Caruso, 39 Misc 3d 137[A], 2012 NY Slip Op 52461[U] [App Term, 9th & 10th Jud Dists 2012]). Further, the imposition of an order of protection of an unspecified duration was an explicit component of the plea agreement, and it cannot be said that a five-year order of protection was inconsistent with "the reasonable understanding and expectations of the parties" (People v Collier, NY3d , 2013 NY Slip Op 08287, *4 [2013] [internal quotation marks omitted]; see also People v O'Connor, 19 Misc 3d 139[A], 2008 NY Slip Op 50901[U], *2 [App Term, 9th & 10th Jud Dists 2008] ["where . . . the imposition of such an order, but not the duration thereof, was a part of a plea agreement, defendant cannot object that the order terminates at a date later than anticipated"]).

We do not consider the five-year order of protection to be harsh or excessive. Where, as here, the offenses involve violent conduct toward a domestic partner and defendant's "failure to successfully complete a court-mandated . . . program," there is "ample justification for [the court's] decision to issue the order of protection" (People v Lewis, 69 AD3d at 1235).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Iannacci and Marano, JJ., concur.
Decision Date: March 10, 2014