People v. Thomas, 2019–03608

• Court: New York Supreme Court Appellate Division
• Citation: 193 A.D.3d 889,142 N.Y.S.3d 390 (Mem)
• Decision Date: 14 April 2021
• Parties: The PEOPLE, etc., respondent, v. Darryl THOMAS, appellant.
• Docket Number: 2019–03608,Ind. No. 2093/18

193 A.D.3d 889
142 N.Y.S.3d 390 (Mem)

The PEOPLE, etc., respondent,
v.
Darryl THOMAS, appellant.

2019–03608
Ind. No. 2093/18

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

Submitted—March 24, 2021
April 14, 2021

Janet E. Sabel, New York, N.Y. (Kristina Schwarz of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Roni C. Piplani, and Antara D. Kanth of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, BETSY BARROS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leslie G. Leach, J.), rendered February 25, 2019, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, he validly waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Carryl, 169 A.D.3d 818, 93 N.Y.S.3d 703 ). Nonetheless, the defendant's contentions that an order of protection should be vacated because the Supreme Court failed to articulate on the record its reasons for issuing the order of protection as required by CPL 530.13(4), and that the court erred in setting the duration of the order, survive his appeal waiver (see People v. Guidice, 183 A.D.3d 913, 122 N.Y.S.3d 916 ; People v. Carryl, 169 A.D.3d at 820, 93 N.Y.S.3d 703 ; People v. Appiarius, 160 A.D.3d 889, 73 N.Y.S.3d 899 ). However, those contentions are unpreserved for appellate review (see CPL 470.05[2] ; People v. Nieves, 2 N.Y.3d 310, 316–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 ; People v. DeRobertis, 191 A.D.3d 898, 138 N.Y.S.3d 919 ). The defendant failed to raise these issues at sentencing or move to amend the order of protection on these grounds, and we decline to reach them in the exercise of our interest of justice jurisdiction (see People v. Nicholson, 190 A.D.3d 768, 769, 135 N.Y.S.3d 853 ; People v. Colon, 187 A.D.3d 780, 130 N.Y.S.3d 344 ; People v. Rodriguez, 157...