PEOPLE v. ALVARADO (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew Sciarrino, Jr., J.), rendered December 9, 2022, convicting him of assault in the third degree, upon his plea of guilty, and imposing sentence.  The appeal brings up for review an order of protection issued at the time of sentencing.

ORDERED that upon the appeal from the judgment, the order of protection issued at the time of sentencing is vacated, as a matter of discretion in the interest of justice;  and it is further,

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court improperly issued the order of protection in favor of the individual named therein is unpreserved for appellate review (see CPL 470.05[2];  People v. Nieves, 2 N.Y.3d 310, 316–318, 778 N.Y.S.2d 751, 811 N.E.2d 13), but we nevertheless reach the issue in the exercise of our interest of justice jurisdiction.  As the People correctly concede, the court had no authority to issue an order of protection in favor of the individual named therein since he was neither victim of, nor witness to, the crime to which the defendant entered a plea of guilty (see CPL 530.13[4];  People v. Lebron, 233 A.D.3d 710, 220 N.Y.S.3d 844;  People v. Fletcher, 220 A.D.3d 805, 198 N.Y.S.3d 708).

Accordingly, we vacate the order of protection issued at the time of sentencing.

IANNACCI, J.P., BRATHWAITE NELSON, VOUTSINAS and LANDICINO, JJ., concur.