WOOD, TIMOTHY P., PEOPLE v ( 2014 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
12
KA 10-01772
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TIMOTHY WOOD, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered February 16, 2010. The judgment
convicted defendant, upon his plea of guilty, of assault in the second
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of assault in the second degree (Penal Law § 120.05
[3]), defendant contends that Supreme Court violated CPL 530.13
(former [4] [a]) by issuing an order of protection in favor of a
person who was neither a victim of nor a witness to the crime of which
he was convicted. Defendant failed to preserve his contention for our
review (see People v Nieves, 2 NY3d 310, 316-317; People v Brown, 96
AD3d 1561, 1563, lv denied 19 NY3d 1024; People v Kulyeshie, 71 AD3d
1478, 1479, lv denied 14 NY3d 889), and we decline to exercise our
power to review it as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Contrary to defendant’s further
contention, this case does not fall within the “ ‘narrow exception to
the preservation rule’ . . . where a court exceeds its powers and
imposes a sentence that is illegal in a respect that is readily
discernible from the trial record” (Nieves, 2 NY3d at 315).
Entered: February 7, 2014 Frances E. Cafarell
Clerk of the Court