PEOPLE v. HEISE (2007)

 Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of sexual abuse in the first degree (Penal Law § 130.65[3] ).   Defendant failed to move to withdraw the plea or to vacate the judgment of conviction, and his challenge to the factual sufficiency of the plea allocution therefore is unpreserved for our review (see People v. Scott, 15 A.D.3d 883, 788 N.Y.S.2d 798, lv. denied 4 N.Y.3d 856, 797 N.Y.S.2d 430, 830 N.E.2d 329).   This case does not fall within the narrow exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5.   County Court properly refused to suppress the statements made by defendant to a child protective caseworker.   Although defendant's right to counsel had attached when defendant spoke to the caseworker, that right was not violated because the caseworker was not acting as an agent of the police (see People v. Whitmore, 12 A.D.3d 845, 847, 785 N.Y.S.2d 140, lv. denied 4 N.Y.3d 769, 792 N.Y.S.2d 12, 825 N.E.2d 144, 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982).   Defendant failed to preserve for our review his contention concerning the duration of the order of protection (see People v. Nieves, 2 N.Y.3d 310, 315-317, 778 N.Y.S.2d 751, 811 N.E.2d 13), 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[6][a];  People v. Ginter, 23 A.D.3d 1064, 1065, 807 N.Y.S.2d 760, lv. denied 6 N.Y.3d 776, 811 N.Y.S.2d 343, 844 N.E.2d 798).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: