The Legal Aid Bureau of Buffalo, Inc., Buffalo (Leah N. Farwell of counsel), for defendant-appellant.

Joseph V. Cardone, District Attorney, Albion (Susan M. Howard of counsel), for respondent.

Appeal from a judgment of the Orleans County Court (Sanford A. Church, J.), rendered December 12, 2019. The judgment convicted defendant, upon his plea of guilty, of reckless assault of a child.

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

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of reckless assault of a child (Penal Law § 120.02). As defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid (see People v Thomas, 34 NY3d 545, 564-566 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]) and thus does not preclude our review of his challenge to the severity of his sentence (see People v Martin, 213 AD3d 1299, 1299-1300 [4th Dept 2023]). Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Defendant did not preserve his contention regarding the order of protection issued at sentencing (see People v Nieves, 2 NY3d 310, 315-317 [2004]; see generally People v Smart, 169 AD3d 1525, 1526 [4th Dept 2019]; People v Foster, 87 AD3d 299, 301 [2d Dept 2011], lv denied 18 NY3d 858 [2011]), 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]; see also People v Storms, 147 AD3d 1341, 1341 [4th Dept 2017]). Present—Whalen, P.J., Lindley, Bannister, Ogden and DelConte, JJ.