Motion Denying Modification of Order of Protection Issued In Criminal Conviction Not Appealable

A permanent order of protection issued at the conclusion of a criminal action is appealable as of right as part of the judgment of conviction (see People v Nieves, 2 NY3d 310, 315 [2004]; CPL 450.10). Last week in People v Whalen, 2008 NY Slip Op 01874, the Third Department held that an order denying a motion to modify such an order of protection is not appealable.

In that case, the defendant had a sexual relationship with one of his biological daughters, and was convicted of two various counts of rape, sodomy, and incest and imprisoned. As part of that sentence, a permanent order of protection was entered pursuant to CPL 530.12 prohibiting the defendant from contacting the victim and her “other and immediate family.” Once incarcerated, the defendant began corresponding with the victim’s half sister, who was the defendant’s younger biological daughter by a different mother. That daughter, with the assistance of her mother, thereafter began visiting the defendant in prison until correction officials became concerned that he was grooming her to be his next victim. Citing the order of protection, correction officials then denied the defendant further contact with the victim’s half sibling. Shortly thereafter, the defendant made a motion seeking to have the order of protection modified to allow such contact. The County Court denied that motion and the defendant appealed the County Court’s order.

The Third Department dismissed the appeal. The Court stated that a defendant’s right to appeal within the criminal procedure universe was purely statutory and was therefore strictly limited. The Court, recognizing that an order of protection issued at the conclusion of a criminal action is appealable as of right, nevertheless stated that an order denying modification of such an order did not fit within the statutory authorization for appeals as of right within CPL 450.10.

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