People v. Kennedy
| Decision Date | 28 June 2017 |
| Parties | The PEOPLE, etc., respondent, v. Tyshawn KENNEDY, appellant. |
| Court | New York Supreme Court — Appellate Division |
Lynn W.L. Fahey, New York, NY (Ronald Zapata of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Amy Appelbaum, and Arieh Schulman of counsel), for respondent.
Appeal by the defendant, as limited by his motion, from so much of a sentence of the Supreme Court, Kings County (Foley, J.), imposed June 15, 2015, upon his plea of guilty, as issued an order of protection to remain in effect until June 14, 2028.
ORDERED that the sentence is affirmed insofar as appealed from.
While the defendant validly waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown, 122 A.D.3d 133, 141, 992 N.Y.S.2d 297 ), his contentions concerning the validity of an order of protection issued at the time of sentencing survive his appeal waiver (see People v. Bernardini, 142 A.D.3d 671, 672, 36 N.Y.S.3d 827 ; People v. Kumar, 127 A.D.3d 882, 883, 4 N.Y.S.3d 900 ; People v. Cedeno, 107 A.D.3d 734, 734, 965 N.Y.S.2d 887 ). However, those contentions are unpreserved for appellate review, since he did not raise them at sentencing or move to amend the final order of protection (see CPL 470.05[2] ; People v. Nieves, 2 N.Y.3d 310, 316–318, 778 N.Y.S.2d 751, 811 N.E.2d 13 ; People v. O'Connor, 136 A.D.3d 945, 945, 24 N.Y.S.3d 918 ; People v. Fortier, 130 A.D.3d 642, 643, 12 N.Y.S.3d 283 ), and we decline to reach them in the exercise of our interest of justice jurisdiction (see People v. Bernardini, 142 A.D.3d at 672, 36 N.Y.S.3d 827 ; People v. Kumar, 127 A.D.3d at 883, 4 N.Y.S.3d 900 ).
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