People v. Warren
| Decision Date | 01 March 2001 |
| Citation | 280 A.D.2d 75,721 N.Y.S.2d 152 |
| Court | New York Supreme Court — Appellate Division |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>ROBERT J. WARREN, Appellant. |
Bradford C. Riendeau, Watertown, for appellant.
Jerome J. Richards, District Attorney of St. Lawrence County, Canton (Laurie L. Paro of counsel), for respondent.
CREW III, J.
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 AD2d 616, lv denied 76 NY2d 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 AD2d 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 NY2d 261, 267) and the duration of such order is expressly limited by statute (see, CPL 530.13 [4]), defendant's challenge to the duration of the order of protection is directed at an aspect of the underlying sentence. This issue is, therefore, preserved for review despite the plea bargain and the waiver of the right to appeal (see, People v Seaberg, 74 NY2d 1, 9).
Turning to the merits, CPL 530.13 (4) provides that in the case of a felony conviction,...
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