People v. Warren

• Decision Date: 10 January 2001
• Citation: 721 N.Y.S.2d 152
• Parties: (A.D. 3 Dept. 2001) THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERT J. WARREN, Appellant. 11600 Calendar Date:
• Court: New York Supreme Court — Appellate Division

Page 152

721 N.Y.S.2d 152 (A.D. 3 Dept. 2001)

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERT J. WARREN, Appellant.

11600

SUPREME COURT, APPELLATE DIVISION, THIRD JUDICIAL DEPARTMENT

Calendar Date: January 10, 2001

Decided and Entered: March 1, 2001

Bradford C. Riendeau, Watertown, for appellant.

Jerome J. Richards, District Attorney (Laurie L. Paro of counsel), Canton, for respondent.

Before: Cardona, P.J., Mercure, Crew III, Spain and Mugglin, JJ.

Crew III, J.

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered September 8, 1998, convicting defendant upon his plea of guilty of the crimes of attempted escape in the first degree, attempted burglary in the second degree, criminal possession of marihuana in the second degree, criminal contempt in the first degree, sexual abuse in the first degree and driving while intoxicated.

In satisfaction of nine pending indictments, defendant entered a plea of guilty of six crimes including, insofar as is relevant to this appeal, criminal contempt in the first degree and sexual abuse in the first degree. Pursuant to the terms of the plea bargain, which included a waiver of the right to appeal, defendant was sentenced as a second felony offender to determinate and indeterminate prison terms, resulting in a cumulative sentence of 9 to 10½ years. Additionally, an order of protection was entered in favor of defendant's spouse, who was the victim of the criminal contempt, and defendant's stepdaughter, who was the victim of the sexual abuse. Defendant now appeals challenging, inter alia, the scope and duration of the order of protection.

Inasmuch as defendant, who both agreed to the order of protection as part of the negotiated plea bargain and waived his right to appeal, did not move to withdraw the plea or vacate the judgment of conviction, his challenge to the issuance of the order of protection has not been preserved for our review (see generally, People v Sanders, 163 A.D.2d 616, lv denied 76 N.Y.2d 944). As to the scope of the order of protection, which includes defendant's two biological daughters, we find defendant's challenge to be unpersuasive. To the extent that this particular claim survives defendant's waiver of the right to appeal, the case law makes clear that "[a]n order of protection, where appropriate, may be issued independent of the plea agreement" (People v Roman, 243 A.D.2d 831, 831). As defendant's biological daughters apparently were included in the order of protection because they recently had begun residing in the same household as defendant's stepdaughter, their inclusion was authorized by CPL 530.13 (4) (b) and was entirely appropriate.

We do, however, find merit to defendant's challenge to the duration of the order of protection. As a starting point, inasmuch as "the order of protection * * * formed an integral part of the conviction and sentencing" (People v Hernandez, 93 N.Y.2d 261, 267) and the duration of such order is...