| People v Raduns |
| 2010 NY Slip Op 01136 [70 AD3d 1355] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Nicole J.Raduns, Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedNovember 10, 2008. The judgment convicted defendant, upon her plea of guilty, of burglary inthe third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by vacating the order of protection in favorof C.S. and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty ofburglary in the third degree (Penal Law § 140.20). Contrary to the contention ofdefendant, her valid waiver of the right to appeal encompasses her challenge to the severity ofthe sentence inasmuch as County Court advised defendant of the maximum sentence it couldimpose before she waived her right to appeal (see People v Lococo, 92 NY2d 825[1998]). As defendant correctly contends, however, the court had no authority to issue an orderof protection in favor of an individual who was neither a victim of the crime nor a witness to thecrime to which defendant pleaded guilty (see CPL 530.13 [4] [a]). Although defendantfailed to preserve that contention for our review by failing to object to the order of protection onthat ground when it was issued (seePeople v Shampine, 31 AD3d 1163, 1164 [2006]), we nevertheless exercise our powerto review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).The order of protection issued in favor of that individual thus is invalid (see People vCreighton, 298 AD2d 774, 776 [2002]). We therefore modify the judgment by vacating thatorder of protection. Present—Centra, J.P., Peradotto, Lindley, Pine and Gorski, JJ.