People v. Smith

• Decision Date: 11 December 2013
• Citation: 976 N.Y.S.2d 564,2013 N.Y. Slip Op. 08278,112 A.D.3d 759
• Parties: The PEOPLE, etc., respondent, v. Darrell SMITH, appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 759

976 N.Y.S.2d 564

2013 N.Y. Slip Op. 08278

The PEOPLE, etc., respondent,

v.Darrell SMITH, appellant.

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

Dec. 11, 2013.

Steven Banks, New York, N.Y. (Lorca Morello of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane Eisner, and Danit Almog of counsel), for respondent.

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered December 20, 2010, convicting him of burglary in the third degree and criminal contempt in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal ( see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145). The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive ( see People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

The defendant's contentions concerning the duration of a final order of protection survives his valid waiver of his right to appeal ( see People v. Cedeno, 107 A.D.3d 734, 965 N.Y.S.2d 887). The defendant, however, failed to preserve those contentions for appellate review ( seeCPL 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. Cedeno, 107 A.D.3d at 734, 965 N.Y.S.2d 887; People v. Sanchez, 105 A.D.3d 1064, 963 N.Y.S.2d 404; People v. Remington, 90 A.D.3d 678, 679, 933 N.Y.S.2d 891; People v. Maxineau, 78 A.D.3d 732, 732, 909 N.Y.S.2d 659), and we decline to review them in the exercise of our interest of justice jurisdiction.