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

200
KA 09-02161
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

BOBBY L. LILLEY, DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (AARON D. CARR OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered July 13, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt 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 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 AD2d 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 AD2d 916,
lv denied 99 NY2d 617).


Entered:    February 18, 2011                      Patricia L. Morgan
                                                   Clerk of the Court
