PEOPLE v. APPELL

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Timothy APPELL, Defendant-Appellant.

Decided: November 15, 2002

Present GREEN, J.P., HAYES, SCUDDER, GORSKI, and LAWTON, JJ. David M. Parks, Victor, for Defendant-Appellant. Richard M. Healy, District Attorney, Lyons (David V. Shaw of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him, upon his plea of guilty, of aggravated criminal contempt (Penal Law § 215.52) in connection with the violation of a temporary order of protection issued by a local court in conjunction with the adjournment in contemplation of dismissal of an action wherein defendant was charged with harassment in the second degree (§ 240.26).   Defendant failed to preserve for our review his contention that the temporary order of protection, which continued in effect for a period of one year, was void ab initio because it expired after the date to which the underlying action was adjourned (see CPL 470.05[2] ).   In any event, that contention is without merit.   Although the order adjourning the action in contemplation of dismissal stated that the underlying action was adjourned for six months, defendant was charged with a family offense (see 530.11[1] ), and thus the underlying action was adjourned for a period of one year by operation of law (see 170.55[2] ).   Therefore, the temporary order of protection did not continue in effect beyond the date to which the underlying action was adjourned.   Furthermore, defendant admitted during the plea allocution that he knew the temporary order of protection was in effect when he violated it by striking his wife. We reject defendant's contention that the negotiated sentence is unduly harsh or severe (see People v. Jiminez, 260 A.D.2d 723, 724, 687 N.Y.S.2d 824).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: