PEOPLE v. SWINTON (2019)

Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. Michael SWINTON, Appellant.

2016-2338 K CR

Decided: May 24, 2019

PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ.

Appellate Advocates (Alexis A. Ascher of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Victor Barall of counsel), for respondent.

ORDERED that the judgment of conviction is affirmed.

Defendant pleaded guilty to assault in the third degree (Penal Law § 120.00 [1]), and he was sentenced to 15 days in jail and a conditional discharge. A five-year final order of protection also issued. On appeal, defendant contends that this court should reduce the duration of the order of protection as a matter of discretion in the interest of justice.

Defendant's contention regarding the duration of the final order of protection is not preserved for appellate review, since he failed to object on this basis at sentencing and did not move to modify the order in the Criminal Court (see CPL 470.05 [2]; People v. Nieves, 2 NY3d 310, 316-317 [2004]; People v. Appiarius, 160 AD3d 889 [2018]; People v. Rodriguez, 157 AD3d 971 [2018]; People v. Kornegay, 59 Misc 3d 134[A], 2018 NY Slip Op. 50489[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ), and we decline to reach this issue in the interest of justice (see People v. Rodriguez, 157 AD3d 971).

Accordingly, the judgment of conviction is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

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