PEOPLE v. GILYARD (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Toni M. Cimino, J.), rendered June 27, 2022, convicting him of criminal possession of a weapon in the fourth degree, upon his plea of guilty, and imposing sentence.  The appeal brings up for review an order of protection issued in favor of Dave McDonald at the time of sentencing.

ORDERED that upon the appeal from the judgment, the order of protection issued in favor of Dave McDonald 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 an order of protection in favor of Dave McDonald at the time of sentencing 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 (see People v. Fletcher, 220 A.D.3d 805, 198 N.Y.S.3d 708;  People v. Rosales, 198 A.D.3d 988, 157 N.Y.S.3d 45).  As the defendant correctly contends, the court had no authority to issue an order of protection in favor of that individual, as he was neither a victim nor a witness to the particular crime to which the defendant pleaded guilty (see CPL 530.13[4];  People v. Alvarado, 235 A.D.3d 889, 226 N.Y.S.3d 361;  People v. Lebron, 233 A.D.3d 710, 220 N.Y.S.3d 844).

Accordingly, we vacate the order of protection issued in favor of Dave McDonald at the time of sentencing.

IANNACCI, J.P., GENOVESI, WOOTEN and LOVE, JJ., concur.