Opinion
2006-2011 W CR.
Decided April 21, 2008.
Appeal from a judgment of the City Court of Rye, Westchester County (Peter Lane, J.), rendered October 31, 2006. The judgment convicted defendant, upon his plea of guilty, of aggravated harassment in the second degree.
Judgment of conviction affirmed.
PRESENT: TANENBAUM, J.P., MOLIA and SCHEINKMAN, JJ.
Defendant pleaded guilty to aggravated harassment in the second degree (Penal Law § 240.30 [a]) and executed a general waiver of rights, which included the right to appeal. Defendant was sentenced to time served, and the court issued a five-year order of protection on the victim's behalf (CPL 530.13).
We agree with defendant that the record does not reveal that his waiver of the right to appeal was "obtained under constitutionally acceptable circumstances" ( People v Callahan, 80 NY2d 273, 283), as there is no indication that defendant was informed by his counsel, the court, or the waiver form, as to the consequences of such a waiver that are "separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v Lopez , 6 NY3d 248 , 256). However, as defendant's claims either survive an appeal waiver or are barred by his unchallenged guilty plea, the waiver's invalidity does not affect the determination of the appeal.
The accusatory instrument was facially sufficient. The accusatory portion tracked the statutory language ( People v Yakubova , 11 AD3d 644 , 645; People v Prevete , 10 Misc 3d 78 , 80 [App Term, 9th 10th Jud Dists 2005]), and, affording the factual portion, as supplemented by the supporting deposition, the "fair and not overly restrictive or technical reading" to which it is entitled ( People v Casey, 95 NY2d 354, 360), the complainant's allegations of defendant's misconduct, which included innumerable daily calls, the last of which culminated in a death threat, sufficed to support the charge.
As defendant has served his sentence, any issues relating to the length of the sentence are academic ( People v Conklin , 46 AD3d 698 ; People v Ackridge , 31 AD3d 654 , 655). In any event, by "time served," the court clearly contemplated the several days defendant served locally on the instant charge, not the period in which defendant, during the pendency of this prosecution, had been incarcerated in another jurisdiction awaiting trial on an unrelated felony charge. Upon such a sentence, there was no need for a pre-sentence report (CPL 390.20; see People v Davis, 2002 NY Slip Op 40353[U] [App Term, 2d 11th Jud Dists 2002]).
Defendant failed to preserve for appellate review his claim that the five-year order of protection was unauthorized, by raising the issue at sentencing or by moving to amend the order of protection on that ground ( People v Nieves , 2 NY3d 310 , 315-316; People v Konieczny , 2 NY3d 569 , 572; People v Peterkin , 27 AD3d 666 , 667). In any event, the length of an order of protection is governed by the statute "in effect at the time the judgment was rendered" ( People v Goins , 45 AD3d 1371, 1372; see CPL 530.13 [as amended effective October 1, 1995]).
It is noted that as an order of protection is not part of a sentence ( People v Nieves, 2 NY3d at 316), a defendant has no ground to complain that such an order cannot be imposed because it was not part of a bargained for plea and sentencing agreement ( People v Dixon , 16 AD3d 517 ; People v Peters, 232 AD2d 432; People v Oliver, 182 AD2d 716). Thus, even where, as here, the imposition of such an order, but not the duration thereof, was a part of a plea agreement, defendant cannot object that the order terminates at a date later than anticipated.
Tanenbaum, J.P., Molia and Scheinkman, JJ., concur.