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The People of the State of New York v. Erik J. Warren

New York v. Erik J. Warren

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The Legal Aid Bureau of Buffalo, Inc., Buffalo (Leah N. Farwell of Counsel), for Defendant-Appellant. Joseph V. Cardone, District Attorney, Albion (Susan M. Howard of Counsel), for Respondent. Appeal from a judgment of the Orleans County Court (Sanford A. Church, J.), rendered December 12, 2019. The judgment convicted defendant, upon his plea of guilty, of reckless assault of a child. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of reckless assault of a child (Penal Law § 120.02). As defendant contends and the People correctly concede, defendant’s waiver of the right to appeal is invalid (see People v. Thomas, 34 NY3d 545, 564-566 [2019], cert denied — US —, 140 S Ct 2634 [2020]) and thus does not preclude our review of his challenge to the severity of his sentence (see People v. Martin, 213 AD3d 1299, 1299-1300 [4th Dept 2023]). Nevertheless, we conclude that the sentence is not unduly harsh or severe. Defendant did not preserve his contention regarding the order of protection issued at sentencing (see People v. Nieves, 2 NY3d 310, 315-317 [2004]; see generally People v. Smart, 169 AD3d 1525, 1526 [4th Dept 2019]; People v. Foster, 87 AD3d 299, 301 [2d Dept 2011], lv denied 18 NY3d 858 [2011]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3]; see also People v. Storms, 147 AD3d 1341, 1341 [4th Dept 2017]).

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