| People v Whalen |
| 2008 NY Slip Op 01874 [49 AD3d 916] |
| March 6, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Everett R.Whalen, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Laurie L. Paro of counsel), forrespondent.
Cardona, P.J. Appeal from an order of the County Court of St. Lawrence County (Rogers, J.),entered October 13, 2006, which denied defendant's motion to modify a prior order of protection.
As a result of defendant's sexual relationship with one of his biological daughters, he wasconvicted in May 2002 of two counts of rape in the third degree, two counts of sodomy in thethird degree and incest, and sentenced to a period of incarceration. In connection with thatsentence, a permanent order of protection was entered pursuant to CPL 530.12 prohibitingdefendant from contacting, among others, the victim and her "other and immediate family," untilMay 2013. Once incarcerated, defendant began corresponding with the victim's half sister, who isdefendant's younger biological daughter by a different mother. That daughter, with the assistanceof her mother, thereafter began visiting defendant in prison until correction officials becameconcerned that he was grooming her to be his next victim. Citing the order of protection,correction officials then denied defendant further contact with the victim's half sibling. Shortlythereafter, defendant brought a motion seeking to have the order of protection modified to allowsuch contact. County Court denied that motion and defendant appeals from the order enteredthereon.
The instant appeal must be dismissed. As the Court of Appeals has noted, "a defendant's rightto appeal within the criminal procedure universe is purely statutory" (People v Stevens,91 NY2d 270, 278 [1998]) and, therefore, is "strictly limited" (People v Bautista, 7 [*2]NY3d 838, 839 [2006]). While "a permanent order of protectionissued at the conclusion of a criminal action is appealable as part of the judgment of conviction"(People v Konieczny, 2 NY3d569, 572 [2004]; see People vNieves, 2 NY3d 310, 315 [2004]; see also CPL 450.10),[FN*]the instant appeal involves a separate order denying a motion for modification made over fouryears after that judgment. Given that the subject order does not fit within the statutoryauthorization for appeals as of right to this Court contained within CPL 450.10, we conclude thatit cannot be maintained.
Mercure, Spain, Lahtinen and Kane, JJ., concur. Ordered that the appeal is dismissed.
Footnote *: Although the Court of Appeals'decision in People v Nieves (supra) specifically considered permanent orders ofprotection for nonfamily members issued pursuant to CPL 530.13, we find no basis to concludethat its determination as to appealability would not also apply to orders of protection issued infavor of family members pursuant to CPL 530.12 (see Preiser, 2004 Supp PracticeCommentaries, McKinney's Cons Laws of NY, Book 11A, CPL 530.12, 2008 Cum Pocket Part,at 31).