PEOPLE v. GANT (2025)

Judgment, Supreme Court, New York County (Felicia A. Mennin, J., at plea, Brendan T. Lantry, J., at sentencing), rendered May 9, 2024, convicting defendant, of criminal mischief in the fourth degree, and sentencing him to time served and issuing a final order of protection for the benefit of the victim and the parties’ child, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]).  The combination of the court's oral colloquy with defendant, and the written waiver he signed after consultation with counsel, established that defendant had been adequately apprised of the appellate rights he was waiving (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006]).

Defendant failed to preserve his claim that the court misapprehended its sentencing authority (People v. Diaby, 172 A.D.3d 473, 473–474, 97 N.Y.S.3d 861 [1st Dept. 2019], lv denied 33 N.Y.3d 1068, 105 N.Y.S.3d 45, 129 N.E.3d 365 [2019];  People v. Giacchi, 154 A.D.3d 544, 545, 61 N.Y.S.3d 895 [1st Dept. 2017], lv denied 30 N.Y.3d 1105, 77 N.Y.S.3d 4, 101 N.E.3d 390 [2018]), and we decline to consider it in the interest of justice.  As an alternative holding, we find that the sentencing court de facto exercised its discretion in declining to modify the order of protection, and in making the order of protection subject to Family Court modification.