| People v Lewis |
| 2015 NY Slip Op 01304 [125 AD3d 1462] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1](February 13, 2015)
| The People of the State of New York, Respondent, vDaniel W. Lewis, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.),rendered January 28, 2011. The judgment convicted defendant, upon his plea of guilty,of rape in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty,of rape in the second degree (Penal Law § 130.30 [1]), defendant contendsthat County Court erred in issuing an order of protection on behalf of an individual whowas the complainant with respect to an uncharged sexual offense that was satisfied bydefendant's plea. Defendant's contention is unpreserved for our review inasmuch as he"failed to challenge the issuance of the order of protection at sentencing or to seekvacatur of the final order of protection" (People v Morris, 82 AD3d 908, 909 [2011], lv denied17 NY3d 808 [2011]; seePeople v Reynolds, 85 AD3d 825, 825-826 [2011], lv denied 18 NY3d927 [2012]). We reject defendant's related contention that his challenge to the order ofprotection need not be preserved because it renders his sentence illegal. Although anorder of protection is issued at sentencing, it is not a part of a defendant's sentence (see People v Nieves, 2 NY3d310, 316 [2004]; People vLilley, 81 AD3d 1448, 1448 [2011], lv denied 17 NY3d 860 [2011]). Inany event, defendant waived his challenge by agreeing to the order of protection when hepleaded guilty (see generallyPeople v Farewell, 90 AD3d 1502, 1503 [2011], lv denied 18 NY3d 957[2012]). Present—Scudder, P.J., Centra, Lindley, Sconiers and DeJoseph, JJ.