People v. Lewis

• Decision Date: 13 February 2015
• Citation: 2015 N.Y. Slip Op. 01304,999 N.Y.S.2d 915,125 A.D.3d 1462
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel W. LEWIS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

? 125 A.D.3d 1462

999 N.Y.S.2d 915

2015 N.Y. Slip Op. 01304

The PEOPLE of the State of New York, Respondent,

v.Daniel W. LEWIS, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 13, 2015

Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.), rendered January 28, 2011. The judgment convicted defendant, upon his plea of guilty, of rape in the second degree.

Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.

MEMORANDUM:

On appeal from a judgment convicting him, upon his plea of guilty, of rape in the second degree (Penal Law § 130.30[1] ), defendant contends that County Court erred in issuing an order of protection on behalf of an individual who was the complainant with respect to an uncharged sexual offense that was satisfied by defendant's plea. Defendant's contention is unpreserved for our review inasmuch as he “failed to challenge the issuance of the order of protection at sentencing or to seek vacatur of the final order of protection” ( People v. Morris, 82 A.D.3d 908, 909, 918 N.Y.S.2d 198, lv. denied 17 N.Y.3d 808, 929 N.Y.S.2d 568, 953 N.E.2d 806; see People v. Reynolds, 85 A.D.3d 825, 825–826, 925 N.Y.S.2d 553 lv. denied 18 N.Y.3d 927, 942 N.Y.S.2d 466, 965 N.E.2d 968). We reject defendant's related contention that his challenge to the order of protection need not be preserved because it renders his sentence illegal. Although an order of protection is issued at sentencing, it is not a part of a defendant's sentence ( see People v. Nieves, 2 N.Y.3d 310, 316, 778 N.Y.S.2d 751, 811 N.E.2d 13; People v. Lilley, 81 A.D.3d 1448, 1448, 917 N.Y.S.2d 494, lv. denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806). In any event, defendant waived his challenge by agreeing to the order of protection when he pleaded guilty ( see generally People v. Farewell, 90 A.D.3d 1502, 1503, 934 N.Y.S.2d 884, lv. denied 18 N.Y.3d 957, 944 N.Y.S.2d 486, 967 N.E.2d 711).

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

SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, and DeJOSEPH, JJ., concur.