The People moved to modify the order of protection that was issued at defendant's sentencing on May 26, 2006. Defendant opposed the application.

This Court sentenced defendant to two concurrent life sentences without parole for the murder of his wife and daughter. Defendant was also sentenced to a determinate term of 25 years plus five years post-release supervision for the assault of his other daughter to run consecutively to the life sentence. In addition, the Court issued an order or protection for defendant's two surviving minor children for a term of five years. Due to the impending expiration of the order of protection,

the People now move to modify and extend it. Defendant opposed the motion contending that the Court has no legal authority to modify the order of protection because the order of protection was [*2]part of defendant's conviction.

Legal authority to modify the order of protection is a threshold issue. Issuance of an order of protection "incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims and witnesses both prior to and after conviction — it is not part of the sentence imposed" (People v Nieves, 2 NY3d 310, 316 [2004]). Recently the Fourth Department has reiterated that "an order of protection is not a part of the sentence" (People v Tate, 2011 WL 1206040 [4th Dept, Apr. 1, 2011]; People v Tidd, 81 AD3d 1405 [4th Dept 2011]). Defendant relies upon People v Smith, 15 NY3d 669 (2010) for authority that an order of protection issued at sentencing is part of a criminal defendant's conviction and, thus, this Court lacks legal authority to amend or modify the order of protection. While an order of protection may be reviewed as part of a defendant's direct appeal from his or her criminal conviction (id. at 674), the Court of Appeals did not foreclose the ability of the sentencing court to modify an order of protection issued at sentencing (see, People v Nieves, supra). Significantly, the sentencing court

can retain jurisdiction over the matter so that adjustments necessitated by subsequent events can be made as efficiently as possible. Because sentencing courts are in the best position to amend permanent orders of protection, the better practice—and best use of judicial resources—is for a defendant seeking adjustment of such an order to request relief from the issuing court in the first instance, resorting to the appellate courts only if necessary

Additionally, in Matter of Secrist v Brown, 2011 WL 1219234 (4th Dept, Apr. 1, 2011), the petitioner was incarcerated ^[FN1] for killing the respondent-mother's boyfriend, when he petitioned for visitation with his children, despite a criminal order of protection prohibiting the father from having contact with his children for a period of 100 years. The Fourth Department, in affirming the dismissal of the petition without a hearing, noted that "[i]n light of the order of protection, there was nothing counsel could have done to obtain visitation for the [petitioner] father unless the order of protection was vacated or modified in criminal court" (id.), a clear indication that the sentencing court retains legal authority to modify its order of protection.

Moreover, "[t]here is no constitutional impediment to a court's power to modify its decisions provided those modifications do not subject the defendant to double jeopardy" (Matter of Lionel F, 76 NY2d 747, cert denied 498 US 923 [1990]; People v Rosa, 265 AD2d 167, 167 [1st Dept 1999], lv denied 94 NY2d 884 [2000]).

Finally, the Court reviewed the sentencing minutes provided in the People's motion. At sentencing, this Court specifically reserved the People's (and defendant's) right to seek modification of the order of protection [Sentencing Minutes, pp 68-69, "I will sign the Orders of Protection that are requested, but they will be for five years from the date of conviction. Either side may address that at a later time if you wish to file papers, but at this time that's what I will do."], without objection from either party. [*3]

Accordingly, for the foregoing reasons the Court concludes that it retains the legal authority to modify the order of protection.

Turning to the merits of the application, the Court is very familiar with the facts and circumstances of this case and the crimes for which defendant stands convicted. For his crimes, this Court imposed the maximum sentence allowed under the law — life imprisonment without the possibility of parole and 25 years to run consecutive to the life sentence in the New York State Department of Corrections. Following his criminal conviction, on August 16, 2007, defendant's parental rights were terminated in Monroe County Family Court (Donofrio, J.). Defendant has no parental rights to the surviving children, one of which was the victim of the assault wherein the defendant received a determinate term of 25 years.

To safeguard the rights of these young victims, the Court modifies the order of protection to extend for the duration of defendant's sentence plus three years, pursuant to former CPL 530.13 (4), which was the law at the time of defendant's conviction. Considering the aggregate effect of the life sentence combined with the consecutive prison term and the period of post-release supervision (see, People v Goodband, 291 AD2d 584 [3d Dept 2002]), the People shall submit an order of protection for the surviving children with an expiration date of May 26, 2080.

The above constitutes the Decision and Order of this Court.

Dated:Rochester, New York

April 19, 2011

____________________________________

Hon. Joseph D. Valentino

Justice Supreme Court