PEOPLE v. DANIEL (2020)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a resentence of the Supreme Court, Kings County (Matthew D'Emic, J.), imposed April 11, 2019, after remittitur from this Court for resentencing (see People v. Anderson, 170 A.D.3d 739, 95 N.Y.S.3d 274), on the ground that the resentence was excessive.  The appeal brings up for review an order of protection issued at the time of resentencing.

ORDERED that the resentence is affirmed.

The defendant has completed the term of imprisonment imposed on the resentence and, under the circumstances, his contention that it was excessive has been rendered academic (see People v. Rose, 181 A.D.3d 826, 118 N.Y.S.3d 442;  People v. Worrell, 158 A.D.3d 828, 68 N.Y.S.3d 915;  People v. Stockinger, 131 A.D.3d 550, 14 N.Y.S.3d 712).

The defendant's contention that the Supreme Court should not have issued an order of protection in favor of an individual who was not a “witness” within the meaning of CPL 530.13(4)(a) is without merit.  That statute provides, as relevant here, that when a court is sentencing a defendant on a conviction for “any offense,” it may issue an order of protection directing the defendant to stay away from “any witness ․ of such offense” (CPL 530.13[4][a] ).  Here, the record reflects that the order of protection was issued in favor of an individual who had information that was relevant to the offense to which the defendant pleaded guilty (cf. People v. Hanniford, 174 A.D.3d 921, 922, 103 N.Y.S.3d 318;  People v. Cooke, 119 A.D.3d 1399, 1401, 989 N.Y.S.2d 753, affd 24 N.Y.3d 1196, 3 N.Y.S.3d 755, 27 N.E.3d 469;  People v. Creighton, 298 A.D.2d 774, 776, 749 N.Y.S.2d 309).  Accordingly, contrary to the defendant's contention, the court had the authority to issue an order of protection in favor of that individual (see generally People v. Harder, 177 A.D.3d 1336, 1337, 110 N.Y.S.3d 386;  cf.  Penal Law §§ 215.00, 215.15).  To the extent that the Appellate Division, Third Department, has construed the statute more narrowly (see People v. Myers, 163 A.D.3d 1152, 1156, 80 N.Y.S.3d 727;  People v. Somerville, 72 A.D.3d 1285, 1288, 900 N.Y.S.2d 468;  accord People v. Trombley, 91 A.D.3d 1197, 1203, 937 N.Y.S.2d 665;  People v. Malone, 3 A.D.3d 795, 797, 771 N.Y.S.2d 263), we decline to adopt that construction (see generally McKinney's Cons Laws of NY, Book 1, Statutes §§ 275, 321).

The defendant's challenge to the duration of the order of protection is unpreserved for appellate review (see People v. Nieves, 2 N.Y.3d 310, 315, 778 N.Y.S.2d 751, 811 N.E.2d 13), and, under the circumstances, we decline to review that issue in the exercise of our interest of justice jurisdiction (see People v. Torres, 179 A.D.3d 1102, 114 N.Y.S.3d 715;  People v. Flores, 178 A.D.3d 726, 726, 111 N.Y.S.3d 242).  “[T]he better practice—and best use of judicial resources—is for a defendant ․ to request relief from the issuing court in the first instance, resorting to the appellate courts only if necessary” (People v. Nieves, 2 N.Y.3d at 317, 778 N.Y.S.2d 751, 811 N.E.2d 13).

MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur.