THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a resentence pursuant to which County Court sentenced him to a revised term of incarceration, with an unmodified order of protection, based on his conviction of criminal sexual act in the second degree (Penal Law § 130.45[1] ).   The court resentenced defendant with respect to the period of incarceration because the sentence of incarceration originally imposed was illegal.   Defendant contends that the court erred in setting the expiration date of the order of protection based upon the version of CPL 530.13 in effect at the date of the initial sentencing rather than the version that was in effect when defendant committed the crime.   We note at the outset that defendant failed to preserve that contention for our review inasmuch as he never challenged the duration of the order of protection (see CPL 470.05[2];  see generally People v. Harris, 50 AD3d 1608, 1609, lv denied 10 NY3d 959).   We further note that preservation is required because an order of protection is not a part of the sentence and thus is not subject to the illegal sentence exception to the preservation requirement (see People v. Nieves, 2 NY3d 310, 315-317).   In any event, contrary to defendant's contention, the court properly applied the version of CPL 530.13 that was in effect when the judgment was rendered, i.e., at the time of defendant's initial sentencing (see Harris, 50 AD3d at 1609;  People v. Vega, 49 AD3d 1185, 1186, lv denied 10 NY3d 965;  People v. Stone, 49 AD3d 1314, 1315, lv denied 10 NY3d 965).

Patricia L. Morgan

Clerk of the Court