Opinion
2003-01801.
Decided March 1, 2004.
Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Westchester County (DiFiore, J.), imposed December 16, 2002, upon his conviction of rape in the second degree, the sentence being a term of 10 years probation and the issuance of an order of protection to remain in effect until December 16, 2007.
Stephen J. Pittari, White Plains, N.Y. (Jacqueline Oliva of counsel), for appellant.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Thomas K. Chong and Richard Longworth Hecht of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, STEPHEN G. CRANE and BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the sentence is affirmed.
The defendant pleaded guilty to the crime of rape in the second degree, a class D felony ( see Penal Law § 130.30). On December 16, 2002, the County Court adjudicated him a youthful offender and sentenced him to a term of 10 years probation. The court also issued an order of protection, to remain in effect until December 16, 2007.
Contrary to the defendant's contention, the County Court properly imposed a 10-year term of probation, rather than a 5-year term. The crime underlying his youthful offender adjudication was a "sexual assault" (Penal Law § 65.00). Penal Law § 60.02(2) provides, in relevant part, that when a person is sentenced "upon a youthful offender finding which has been substituted for a conviction for any felony, the court must impose a sentence authorized to be imposed upon a person convicted of a class E felony." The authorized period of probation for a person convicted of a class E felony, which is a sexual assault, is 10 years ( see Penal Law § 65.00, [3][a][iii]). Consequently, the mandatory term of probation for a youthful offender who pleads guilty or is found guilty of a sexual assault is 10 years, not 5 years, the authorized term for other E felonies ( see People v. Andrew W., 189 Misc.2d 479).
The defendant also contends that the County Court should have directed that the order of protection run from the date of his plea rather than the date of his sentence. Contrary to the People's contention, that issue may be reviewed on this appeal ( see People v. Wheeler, 268 A.D.2d 448, 449). However, the defendant's contention is without merit ( see People v. Battipaglia, 307 A.D.2d 783, lv denied 100 N.Y.2d 617; People v. Feliciano, 302 A.D.2d 474).
ALTMAN, J.P., KRAUSMAN, CRANE and COZIER, JJ., concur.