People v Rodriguez (Shawn)

[*1] People v Rodriguez (Shawn) 2020 NY Slip Op 50953(U) Decided on August 21, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 21, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-2267 Q CR

The People of the State of New York, Respondent,

against

Shawn Rodriguez, Appellant.

Mark Diamond, for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott and Antara D. Kanth of counsel), for respondent.

Appeal from a judgment of conviction of the Criminal Court of the City of New York, Queens County (Bruna L. DiBiase, J.), rendered October 19, 2017. The judgment convicted defendant, upon his plea of guilty, of disorderly conduct, and imposed sentence. The appeal from the judgment of conviction brings up for review an order of protection dated October 19, 2017, issued at the time of sentencing.

ORDERED that the judgment of conviction is affirmed.

Charged with, among other things, two counts of assault in the third degree (Penal Law § 120.00 [1]), defendant pleaded guilty to the added charge of disorderly conduct (Penal Law § 240.20), and a final two-year limited order of protection was issued in favor of the complainant. On appeal, defendant argues that, because the Criminal Court failed to articulate its reasons on the record for issuing the order of protection, his guilty plea was not knowingly entered and his sentence was illegal. He contends that these issues should be reviewed in the interest of justice even though the order of protection expired during the pendency of this appeal.

While, "[g]enerally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea . . . or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10" (People v Peque, 22 NY3d 168, 182 [2013]), here, defendant's claim is reviewable on direct appeal because defendant faced a practical inability to move to withdraw his plea, since he pleaded guilty and was sentenced in the same proceeding (see People v Williams, [*2]27 NY3d 212, 219-223 [2016]; People v Sougou, 26 NY3d 1052, 1054 [2015]; People v Louree, 8 NY3d 541, 546 [2007]; People v Cappiello, 60 Misc 3d 139[A], 2018 NY Slip Op 51168[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). We note that a permanent order of protection entered upon a conviction may be challenged on an appeal from a judgment of conviction (see People v Nieves, 2 NY3d 310, 315 [2004]).

A guilty plea will be upheld so long as the record as a whole affirmatively discloses that a defendant who pleaded guilty entered his plea "voluntarily, knowingly and intelligently" (People v Haffiz, 19 NY3d 883, 884 [2012] [internal quotation marks omitted]). A plea allocution based on a negotiated plea does not require that a defendant make a specific admission as to each element of the charged offense (see People v Goldstein, 12 NY3d 295, 301 [2009]). Contrary to defendant's contention, an order of protection and its terms are not of "such great importance" as to fall within the rare exception requiring that they be disclosed during the plea allocution (see People v Sanford, 171 AD3d 1405, 1407 [2019], citing People v Gravino, 14 NY3d 546, 559 [2010]). Rather, the Court of Appeals has held that "[i]t is enough that the allocution shows that the defendant understood the charges and made an intelligent decision to enter a plea" (Goldstein, 12 NY3d at 301). Consequently we find, under the circumstances presented, that defendant made a voluntary, knowing and intelligent decision to enter his plea (Goldstein, 12 NY3d at 301).

Defendant's other contention—that his sentence was rendered illegal because the Criminal Court failed to articulate its reasons on the record for the issuance of the order of protection (see CPL 530.12 [5])— lacks merit, as an order of protection issued incident to a criminal proceeding is not a part of the sentence, but rather an "ameliorative measure intended to safeguard the rights of the victims and witnesses" (Nieves, 2 NY3d at 316). Defendant failed to object to the order of protection at sentencing, and we find no grounds for the exercise of this court's interest of justice jurisdiction review, as no obvious infirmity exists with respect to the order of protection, given that the order is now expired.

Accordingly, the judgment of conviction is affirmed.

WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 21, 2020