THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. BOBBY LILLEY DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. BOBBY L. LILLEY, DEFENDANT-APPELLANT.

KA 09-02161

Decided: February 18, 2011

PRESENT:  SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT. CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (AARON D. CARR OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of criminal contempt in the second degree (Penal Law § 215.50[3] ), defendant contends that his waiver of the right to appeal was invalid and that County Court impermissibly enhanced his sentence by issuing a stay away order of protection in favor of the victim (see generally CPL 530.13[4] ).   We note at the outset that it is of no moment whether defendant's waiver of his right to appeal was invalid.   Such a waiver, even if valid, would not preclude our consideration of defendant's contention concerning the order of protection, because such an order was not a part of the plea agreement, nor was such an order discussed during the plea colloquy (see generally People v. Doris, 64 AD3d 813, lv denied 13 NY3d 796).   Nevertheless, we conclude that defendant's contention with respect to the order of protection is without merit.  “An order of protection may properly be issued independent of a plea agreement” (People v. Smith, 294 A.D.2d 916, 916) and, although such an order is issued at sentencing, it is not a part of defendant's sentence (see People v. Nieves, 2 NY3d 310, 316;  People v. Dixon, 16 AD3d 517).   Contrary to defendant's further contention, the court had the authority to issue the order of protection in the absence of the victim's consent (see People v. Monacelli, 299 A.D.2d 916, lv. denied 99 N.Y.2d 617).

Patricia L. Morgan

Clerk of the Court