People v. Farrell

201 A.D.3d 1367

158 N.Y.S.3d 720 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Steven FARRELL, Defendant-Appellant.

1144

KA 19-01377

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

Entered: January 28, 2022

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, NEMOYER, AND CURRAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by amending order of protection No. 2018-000498 to delete the stay-away and no-contact directives with respect to defendant's son in paragraphs 1 and 14 thereof, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal contempt in the first degree ( Penal Law § 215.51 [b] [i] ). Even assuming, arguendo, that defendant did not validly waive his right to appeal, we nevertheless conclude that his sentence is not unduly harsh or severe.

Defendant's challenge to order of protection No. 2018-000498—i.e., the final order of protection in favor of, inter alia, defendant's son—would survive even a valid waiver of the right to appeal (see People v. May , 138 A.D.3d 1146, 1147, 30 N.Y.S.3d 327 [2d Dept. 2016], lv denied 27 N.Y.3d 1153, 39 N.Y.S.3d 387, 62 N.E.3d 127 [2016] ; People v. Lilley , 81 A.D.3d 1448, 1448, 917 N.Y.S.2d 494 [4th Dept. 2011], lv denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011] ). On the merits of that challenge, we note that a final stay-away or no-contact protective order in a criminal action may be issued only in favor of the "defendant's victims or witnesses in th[e given] matter," i.e., the victims of or witnesses to the crime of which the defendant was convicted ( People v. Dolan , 140 A.D.3d 1681, 1682, 32 N.Y.S.3d 534 [4th Dept. 2016] ; see CPL 530.12 [5] [a] ; CPL 530.13 [4] [a] ; People v. Cooke , 119 A.D.3d 1399, 1401, 989 N.Y.S.2d 753 [4th Dept. 2014], affd 24 N.Y.3d 1196, 3 N.Y.S.3d 755, 27 N.E.3d 469 [2015], cert denied 577 U.S. 1011, 136 S.Ct. 542, 193 L.Ed.2d 434 [2015] ). Thus, "[i]nasmuch as [defendant's son was] not defendant's victim[ ] or witness[ ] in this matter, the order of protection may not require defendant to stay away from [or avoid contact with his son]" ( Dolan , 140 A.D.3d at 1682, 32 N.Y.S.3d 534 ; see Cooke , 119 A.D.3d at 1401, 989 N.Y.S.2d 753 ; People v. Raduns , 70 A.D.3d 1355, 1355, 896 N.Y.S.2d 541 [4th Dept. 2010], lv denied 14 N.Y.3d 891, 903 N.Y.S.2d 779, 929 N.E.2d 1014 [2010], reconsideration denied 15 N.Y.3d 808, 908 N.Y.S.2d 168, 934 N.E.2d 902 [2010] ). Contrary to Supreme Court's view and the People's assertion, the appropriateness of a stay-away or no-contact directive with respect to defendant's son is properly addressed in Family Court, not in this criminal prosecution (see Matter of Brianna L. [Marie A.] , 103 A.D.3d 181, 188, 956 N.Y.S.2d 518 [2d Dept. 2012] ; see generally Matter of Granger v. Misercola , 21 N.Y.3d 86, 91, 967 N.Y.S.2d 872, 990 N.E.2d 110 [2013] ). We therefore modify the judgment accordingly.