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People v. Shewczyk

State of New York Supreme Court, Appellate Division Third Judicial Department


April 8, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOSEPH M. SHEWCZYK, APPELLANT.

The opinion of the court was delivered by: Cardona, P.J.

MEMORANDUM AND ORDER

Calendar Date: February 9, 2010

Before: Cardona, P.J., Peters, Kavanagh, McCarthy and Egan Jr., JJ.

Appeal from a judgment of the Supreme Court (Main Jr., J.), rendered March 25, 2009 in Franklin County, which revoked defendant's probation and imposed a sentence of imprisonment.

In 2008, defendant pleaded guilty to criminal mischief in the fourth degree and was sentenced to three years of probation. In conjunction with sentencing, Supreme Court (Meyer, J.) issued an order of protection in favor of defendant's wife and son, set to expire in 2013. After defendant violated the terms of his probation, Supreme Court (Main Jr., J.) revoked his probation and sentenced him to one year in jail. The court also issued an order of protection that continued the provisions of the previous order and added a provision ordering defendant to stay away from his wife and son.

On this appeal from the judgment, defendant challenges Supreme Court's authority to issue an order of protection or modify an existing order in the context of a probation revocation proceeding. However, that challenge is unpreserved for our review because defendant did not object to the order before Supreme Court (see People v Nieves, 2 NY3d 310, 316-317 [2004]), and we decline to exercise our interest of justice power in this case.

Peters, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

20100408

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