People v. Hanniford

• Decision Date: 31 July 2019
• Docket Number: Ind. No. 18/16,2017-06781
• Citation: 103 N.Y.S.3d 318 (Mem),174 A.D.3d 921
• Parties: The PEOPLE, etc., Respondent, v. Dean R. HANNIFORD, Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 921

103 N.Y.S.3d 318 (Mem)

The PEOPLE, etc., Respondent,

v.Dean R. HANNIFORD, Appellant.

2017-06781

Ind. No. 18/16

Supreme Court, Appellate Division, Second Department, New York.

July 31, 2019

Submitted—April 2, 2019

Gary E. Eisenberg, New City, NY, for appellant.

Robert V. Tendy, District Attorney, Carmel, N.Y. (David M. Bishop of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Putnam County (James T. Rooney, J.), rendered June 14, 2017, convicting him of criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review an order of protection issued at the time of sentencing.

ORDERED that upon the appeal from the judgment, the order of protection issued at the time of sentencing is vacated, on the law; and it is further,

ORDERED that the judgment is affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 339–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see generally People v. Brown, 122 A.D.3d 133, 145–146, 992 N.Y.S.2d 297 ). The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the County Court's suppression determination (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ; People v. King, 169 A.D.3d 1060, 1060, 92 N.Y.S.3d 895 ; People v. Jessamy, 137 A.D.3d 1056, 1056, 28 N.Y.S.3d 376 ).

The defendant's contentions concerning the validity of the order of protection issued over his objection at the time of sentencing survive his appeal waiver (see People v. May, 138 A.D.3d 1146, 1147, 30 N.Y.S.3d 327 ; People v. Kumar, 127 A.D.3d 882, 883, 4 N.Y.S.3d 900 ; People v. Sabo, 117 A.D.3d 1089, 986 N.Y.S.2d 232 ). As the defendant correctly contends, the County Court had no authority to issue an order of protection in favor of individuals who were neither victims of the crime nor witnesses to the crime to which the defendant pleaded guilty (see CPL 530.13[4] ; People v. Cooke, 119 A.D.3d 1399, 1401, 989 N.Y.S.2d 753, affd 24 N.Y.3d 1196, 27 N.E.3d 469 ; People v. Raduns, 70 A.D.3d 1355, 1355, 896 N.Y.S.2d 541 ; People v. Creighton, 298 A.D.2d 774, 774–776, 749 N.Y.S.2d 309 ). The persons in whose favor the court issued an order of protection were the owners of certain stolen property that served as the basis for three counts in the indictment that were dismissed in satisfaction of the defendant's plea of guilty to the unrelated count of criminal possession of a controlled substance in the fifth degree. Accordingly, we must vacate the order of protection issued at the time of sentencing (see CPL 530.13[4] ; People v. Cooke, 119 A.D.3d at 1401, 989...