People v. Smart

• Decision Date: 08 February 2019
• Docket Number: KA 16–02196,1451
• Parties: The PEOPLE of the State of New York, Respondent, v. Adam SMART, Also Known as Adam D. Smart, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 1525
91 N.Y.S.3d 920 (Mem)

The PEOPLE of the State of New York, Respondent,
v.
Adam SMART, Also Known as Adam D. Smart, Defendant–Appellant.

1451
KA 16–02196

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

Entered: February 8, 2019

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT–APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN, Albion OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.

91 N.Y.S.3d 921

MEMORANDUM AND ORDER

169 A.D.3d 1525

It is hereby ORDERED that the judgment so appealed from is

169 A.D.3d 1526

unanimously modified on the law by amending the order of protection in favor of defendant's biological daughter to allow contact, communication, or access permitted by a subsequent order issued by a Family or Supreme Court in a custody, visitation or child abuse or neglect proceeding, and as modified the judgment is 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 [c] ), defendant contends that County Court erred in issuing an order of protection in favor of a witness to a prior crime (see CPL 530.13[4][a] ), i.e., his biological daughter, without providing that the order of protection could be modified by a subsequent visitation order issued by Family Court or Supreme Court. As a preliminary matter, we agree with defendant that his waiver of the right to appeal does not preclude us from considering his contention inasmuch as the order of protection was "not a part of the plea agreement" ( People v. Lilley, 81 A.D.3d 1448, 1448, 917 N.Y.S.2d 494 [4th Dept. 2011], lv denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011] ), and is not a part of his sentence (see People v. Nieves, 2 N.Y.3d 310, 316, 778 N.Y.S.2d 751, 811 N.E.2d 13...