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The People of the State of New York v. Brandon M. Smith

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


April 14, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
BRANDON M. SMITH, APPELLANT.

Appeal from a judgment of the County Court of Madison County (McDermott, J.), rendered July 1, 2009, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

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

MEMORANDUM AND ORDER

Calendar Date: February 17, 2011

Before: Peters, J.P., Lahtinen, Malone Jr., Kavanagh and Garry, JJ.

Defendant waived his right to appeal and pleaded guilty to a superior court information charging him with one count of burglary in the second degree in order to, among other things, avoid prosecution for several other burglaries. Defendant, a second felony offender, was thereafter sentenced to a five-year prison term, to be followed by five years of postrelease supervision. County Court also entered orders of protection in favor of the victims of the charged burglary, as well as Louis Curto, a victim of one of the uncharged burglaries that was covered by his guilty plea.

Defendant now appeals, arguing only that the order of protection issued in Curto's favor was improper. Although this issue survives defendant's appeal waiver (see People v Victor, 20 AD3d 927, 928 [2005], lv denied 5 NY3d 833, 885 [2005]; People v Debo, 234 AD2d 944, 945 [1996], lv denied 89 NY2d 984 [1997]), it is unpreserved for our review given his failure to raise it before County Court (see People v Nieves, 2 NY3d 310, 315-317 [2004]). Moreover, considering that defendant specifically agreed to the terms of the order of protection as part of his plea, we decline to exercise our interest of justice jurisdiction.

Peters, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20110414

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