PEOPLE v. NUNEZ

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Eulalio NUNEZ, Defendant-Appellant.  (Appeal No. 1.)

Decided: December 30, 1999

PRESENT:  GREEN, J.P., PINE, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Scott P. Falvey, Canandaigua, for defendant-appellant. Brian D. Dennis, Canandaigua, for plaintiff-respondent.

Defendant entered pleas of guilty to an indictment charging five counts of sexual abuse in the first degree (Penal Law § 130.65[3] ) and to an indictment charging bail jumping in the second degree (Penal Law § 215.56).   Defendant was sentenced to the agreed-upon sentence of two indeterminate, consecutive terms of imprisonment of 2 to 6 years on two of the sexual abuse counts, with three 2 to 6 year indeterminate terms of imprisonment on the remaining sexual abuse counts, to run concurrently with each other and with the sentences imposed on the first two counts.   Defendant was sentenced to the agreed-upon sentence of a consecutive indeterminate term of imprisonment of 1 to 3 years on the bail jumping conviction, for an aggregate sentence of 5 to 15 years of imprisonment.

 The sentence is neither unduly harsh nor severe.   Although defendant had no prior criminal conviction and had been gainfully employed prior to these incidents, defendant admitted that he sexually abused the five-year-old daughter of his girlfriend on five occasions over a long period of time.   Defendant could have been sentenced to consecutive terms on those counts, and he entered a knowing, voluntary and intelligent plea to minimize his exposure.

 We note that the order of protection entered in favor of the victim, however, exceeds the legal duration.   Pursuant to CPL 530.13(4), the order of protection shall not extend more than three years beyond the maximum expiration of the sentence.   The order of protection was entered only in regard to the sexual abuse counts;  therefore, it could extend no longer than 15 years.   Although the judgment of conviction indicates that the order of protection shall extend for 15 years, the order of protection provides for an expiration date of July 29, 2016, which is 18 years.   Consequently, the order of protection must be amended to provide for an expiration date of July 29, 2013.

Judgment unanimously affirmed.

MEMORANDUM: