        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

296
KA 11-01643
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD A. SAID, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered March 1, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree.

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

     Memorandum: In appeal Nos. 1 and 2, defendant appeals from
judgments convicting him upon his pleas of guilty of criminal contempt
in the first degree (Penal Law § 215.51 [b] [iii]; [c]). We conclude
with respect to each appeal that defendant’s waiver of the right to
appeal is invalid because the brief inquiry made by Supreme Court was
“insufficient to establish that the court ‘engage[d] the defendant in
an adequate colloquy to ensure that the waiver of the right to appeal
was a knowing and voluntary choice’ ” (People v Brown, 296 AD2d 860,
860, lv denied 98 NY2d 767; see People v Allen, 64 AD3d 1190, 1191, lv
denied 13 NY3d 794). Also with respect to each appeal, we reject the
contention of defendant that the court erred in denying his motion to
withdraw the guilty plea. The determination whether to permit a
defendant to withdraw a guilty plea rests within the sound discretion
of the court (see People v Cantu, 202 AD2d 1033, 1033), and here there
was no abuse of discretion.

     With respect to appeal No. 2, although defendant’s jurisdictional
challenge to the superior court information (SCI) survives the plea
and would in any event have survived a valid waiver of the right to
appeal (see People v Heinig, 21 AD3d 1297, 1297, lv denied 6 NY3d
813), we nevertheless reject that challenge. According to defendant,
the SCI is jurisdictionally defective because he was not arraigned on
the felony complaint charging criminal contempt in the first degree.
                                 -2-                           296
                                                         KA 11-01643

The record, however, establishes that the court sat as a local
criminal court for arraignment purposes and arraigned defendant on the
felony complaint.

     We reject defendant’s challenge to the severity of the sentence
in each appeal. Defendant’s further contention that the court erred
in setting a 15-year duration for the order of protection issued in
connection with both judgments is not preserved for our review (see
People v Nieves, 2 NY3d 310, 315-317), and is without merit in any
event (see CPL 530.12 [former (5) (A) (ii)]). Defendant also failed
to preserve for our review his contention that the court failed to
take into account jail time credit to which he is entitled in
determining the duration of the order of protection (see Nieves, 2
NY3d at 315-317), 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 [3] [c]; People v Jackson, 81 AD3d 1320, 1321, lv denied 16
NY3d 896).




Entered:   April 26, 2013                      Frances E. Cafarell
                                               Clerk of the Court
