           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

3
KA 11-00690
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DANIEL W. LEWIS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     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
unanimously affirmed.

      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 contends that County Court erred in issuing an order of
protection on behalf of an individual who was the complainant with
respect to an uncharged sexual offense that was satisfied by
defendant’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 seek vacatur of the final order of
protection” (People v Morris, 82 AD3d 908, 909, lv denied 17 NY3d 808;
see People v Reynolds, 85 AD3d 825, 825-826 lv denied 18 NY3d 927).
We reject defendant’s related contention that his challenge to the
order of protection need not be preserved because it renders his
sentence illegal. Although an order of protection is issued at
sentencing, it is not a part of a defendant’s sentence (see People v
Nieves, 2 NY3d 310, 316; People v Lilley, 81 AD3d 1448, 1448, lv
denied 17 NY3d 860). In any event, defendant waived his challenge by
agreeing to the order of protection when he pleaded guilty (see
generally People v Farewell, 90 AD3d 1502, 1503, lv denied 18 NY3d
957).




Entered:   February 13, 2015                       Frances E. Cafarell
                                                   Clerk of the Court
