PEOPLE v. SHAKESPEARE (2021)

ORDERED that the judgment of conviction is affirmed.

Pursuant to a negotiated plea agreement, defendant pleaded guilty to unlawful possession of personal identification information in the third degree (Penal Law § 190.81) in exchange for a sentence of a conditional discharge and payment of $6,651 in restitution, as well as a permanent order of protection in favor of the complainant, a patient, whose debit card defendant, an at-home health care worker, admitted to using without authority or permission to withdraw and steal the restitution amount over the course of nearly two years. A temporary order of protection was in effect throughout the proceedings until it was replaced by a permanent order of protection at sentencing.

Although the issuance of the permanent order of protection during the sentencing proceeding is not a part of defendant's sentence (see CPL 530.13 [4]; People v Nieves, 2 NY3d 310, 316 [2004]), defendant's appeal from the judgment of conviction brings up for review defendant's challenge to the Criminal Court's issuance of the permanent order of protection (see CPL 450.10 [1]; People v Rodriguez, 68 Misc 3d 130[A], 2020 NY Slip Op 50953[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020] [“a permanent order of protection entered upon a conviction may be challenged on an appeal from a judgment of conviction”]). However, defendant's claim is unpreserved (see CPL 470.05 [2]; Nieves, 2 NY3d at 316-318; People v Mitchell, 142 AD3d 1185 [2016]; People v May, 138 AD3d 1146, 1147 [2016]; People v O'Conner, 136 AD3d 945 [2016]; People v Sweeney, 106 AD3d 841, 842 [2013]), and we decline to address it as a matter of discretion in the interest of justice.

Accordingly, the judgment of conviction is affirmed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.