PEOPLE v. OLIVEIRA (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Chad Brown, J.), rendered August 1, 2022, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

Defendant was charged by a 20–count indictment with, among other crimes, burglary, criminal possession of a weapon, kidnapping, endangering the welfare of a child, harassment and stalking.  In full satisfaction of the indictment, defendant pleaded guilty to one count of burglary in the second degree and agreed to waive his right to appeal.  In accordance with the terms of the plea agreement, County Court sentenced defendant to a prison term of five years, with credit for time served, to be followed by five years of postrelease supervision, and signed orders of protection in favor of the victims.  Defendant appeals.

Regardless of the validity of defendant's appeal waiver, he has completed his term of incarceration and, as a result of being deported, he is not serving postrelease supervision, rendering his challenge to the severity of his sentence moot (see People v. Pena, 129 A.D.3d 600, 601, 11 N.Y.S.3d 596 [1st Dept. 2015], lv denied 26 N.Y.3d 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 [2015];  see generally People v. Peters, 238 A.D.3d 1391, 1393, 234 N.Y.S.3d 846 [3d Dept. 2025]).¹  Defendant's challenge to the voluntariness of his plea survives without regard to the purported appeal waiver but is unpreserved for our review, as the record does not reflect that he made an appropriate postallocution motion despite having the opportunity to do so prior to sentencing (see People v. Moses, 236 A.D.3d 1201, 1202, 229 N.Y.S.3d 694 [3d Dept. 2025];  People v. DePace, 235 A.D.3d 1179, 1180, 228 N.Y.S.3d 363 [3d Dept. 2025]).  Contrary to defendant's contention, neither his statements during the plea proceeding nor those made after his sentence had been imposed triggered the narrow exception to the preservation requirement (see People v. Pastor, 28 N.Y.3d 1089, 1090, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016];  People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  cf.  People v. Boyce, 2 A.D.3d 1208, 1209, 769 N.Y.S.2d 659 [3d Dept. 2003], lv denied 2 N.Y.3d 737, 778 N.Y.S.2d 463, 810 N.E.2d 916 [2004]).  Defendant's law of the case argument, concerning one of the orders of protection entered against him, is also unpreserved (see generally People v. Hunt, 176 A.D.3d 1253, 1254–1255, 111 N.Y.S.3d 134 [3d Dept. 2019]).  In any event, because the record makes clear that defendant consented to the order of protection as part of his plea agreement, we would nevertheless find his argument to be unavailing (see generally People v. Evans, 94 N.Y.2d 499, 502–504, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000]).

Defendant's remaining contentions have been reviewed and determined to be without merit.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   To the extent that defendant seeks to have the orders of protection vacated in the interest of justice as part of his challenge to the severity of his sentence, we conclude that those orders, although issued at the time of sentencing, “were not a part of defendant's sentence” and, therefore, cannot be considered as part of his challenge to the severity of that sentence (People v. Nieves, 2 N.Y.3d 310, 316, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004];  see People v. Buyund, 37 N.Y.3d 532, 538–539, 162 N.Y.S.3d 276, 182 N.E.3d 1068 [2021];  People v. Hunt, 176 A.D.3d 1253, 1254–1255, 111 N.Y.S.3d 134 [3d Dept. 2019]).

Garry, P.J.

Lynch, Ceresia, Fisher and Mackey, JJ., concur.