People v. Heise

Appeal from a judgment of the Wayne County Court (John B. Nesbitt, J.), rendered October 11, 2002. The judgment convicted [1256] defendant, upon his plea of guilty, of sexual abuse in the first degree (two counts). It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: 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 AD3d 883 [2005], lv denied 4 NY3d 856 [2005]). This case does not fall within the narrow exception to the preservation requirement set forth in People v Lopez (71 NY2d 662, 666 [1988]). 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 AD3d 845, 847 [2004], lv denied 4 NY3d 769, 892 [2005] ). Defendant failed to preserve for our review his contention concerning the duration of the order of protection (see People v Nieves, 2 NY3d 310, 315-317 [2004]), 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 AD3d 1064, 1065 [2005], lv denied 6 NY3d 776 [2006] ). Present—Martoche, J.P., Lunn, Peradotto, Green and Pine, JJ.