THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. NICOLE RADUNS DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the order of protection in favor of C.S. and as modified the judgment is affirmed.

Memorandum:  Defendant appeals from a judgment convicting her upon her plea of guilty of burglary in the third degree (Penal Law § 140.20).   Contrary to the contention of defendant, her valid waiver of the right to appeal encompasses her challenge to the severity of the sentence inasmuch as County Court advised defendant of the maximum sentence it could impose before she waived her right to appeal (see People v. Lococo, 92 N.Y.2d 825).   As defendant correctly contends, however, the court had no authority to issue an order of protection in favor of an individual who was neither a victim of the crime nor a witness to the crime to which defendant pleaded guilty (see CPL 530.13[4][a] ).   Although defendant failed to preserve that contention for our review by failing to object to the order of protection on that ground when it was issued (see People v. Shampine, 31 AD3d 1163, 1164), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   The order of protection issued in favor of that individual thus is invalid (see People v. Creighton, 298 A.D.2d 774, 776).   We therefore modify the judgment by vacating that order of protection.

Patricia L. Morgan

Clerk of the Court