PEOPLE v. BENNETT (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lenora Gerald, J., at plea;  Bruna L. DiBiase, J., at sentence), rendered September 14, 2021, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.  The appeal brings up for review two orders of protection issued at the time of sentencing.

ORDERED that upon the appeal from the judgment, the orders of protection issued in favor of Jose Capellan–Jimenez and Anthony Scalise at the time of sentencing are vacated, as a matter of discretion in the interest of justice;  and it is further,

ORDERED that the judgment is affirmed.

“The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case” (People v Dixon, 233 AD3d 1026, 1027 [internal quotation marks omitted];  see People v Powell, 244 AD3d 872).  “In making such a determination, factors to be considered by the court include the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant's prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant's reputation, the level of cooperation with authorities, defendant's attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” (People v Battle, 209 AD3d 758, 759 [internal quotation marks omitted];  see People v Forero, 235 AD3d 896, 896).  Here, contrary to the defendant's contention, the Supreme Court providently exercised its discretion in declining to grant the defendant youthful offender status in light of the nature and circumstances of his offense (see People v Forero, 235 AD3d at 896;  People v Beyjones, 186 AD3d 848), as well as his history of violent acts (see People v Hernandez, 184 AD3d 758).

The defendant's contention that the Supreme Court improperly issued orders of protection in favor of Jose Capellan–Jimenez and Anthony Scalise at the time of sentencing is unpreserved for appellate review, since the defendant failed to object to the orders of protection at sentencing or otherwise raise the issue before the court (see CPL 470.05[2];  People v Nieves, 2 NY3d 310, 316–317).  Nevertheless, we reach this issue in the exercise of our interest of justice jurisdiction (see People v Espinosa, 248 AD3d 1054;  People v Gaffar, 243 AD3d 586, 586–587).  As the defendant correctly contends, the court had no authority to issue orders of protection in favor of those individuals, as they were neither victims of nor witnesses to the particular crime to which the defendant pleaded guilty (see CPL 530.13[4];  People v Espinosa, 248 AD3d at 1054;  People v Gaffar, 243 AD3d at 586–587).  Accordingly, we vacate the orders of protection issued in favor of Jose Capellan–Jimenez and Anthony Scalise at the time of sentencing.

CHAMBERS, J.P., WARHIT, LOVE and QUIRK, JJ., concur.