Opinion
2014-05-2
The PEOPLE of the State of New York, Respondent, v. Jason PAUL, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ), defendant contends that the order of protection is unduly harsh. We note at the outset that defendant's contention survives the valid waiver of the right to appeal because the order of protection was not a part of the plea agreement, and an order of protection is not a part of the sentence ( see People v. Lilley, 81 A.D.3d 1448, 1448, 917 N.Y.S.2d 494,lv. denied17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806). Nevertheless, we conclude that it lacks merit ( see People v. Tate, 83 A.D.3d 1467, 1467–1468, 919 N.Y.S.2d 919). Defendant further contends that the order of protection should not have been issued because to his knowledge the victim did not request that it be issued. We reject that contention inasmuch as Supreme Court had the authority to issue the order even in the absence of the victim's consent ( see Lilley, 81 A.D.3d at 1448, 917 N.Y.S.2d 494).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.