| People v Daniel A. |
| 2020 NY Slip Op 03020 [183 AD3d 909] |
| May 27, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Daniel A., Appellant. |
Paul Skip Laisure, New York, NY (Alice R. B. Cullina of counsel), forappellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J.Dennehy of counsel; Robert Ho on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a resentence of the SupremeCourt, Kings County (Matthew D'Emic, J.), imposed April 11, 2019, after remittitur fromthis Court for resentencing (seePeople v Anderson, 170 AD3d 739 [2019]), on the ground that the resentencewas excessive. The appeal brings up for review an order of protection issued at the timeof resentencing.
Ordered that the resentence is affirmed.
The defendant has completed the term of imprisonment imposed on the resentenceand, under the circumstances, his contention that it was excessive has been renderedacademic (see People vRose, 181 AD3d 826 [2020]; People v Worrell, 158 AD3d 828 [2018]; People v Stockinger, 131AD3d 550 [2015]).
The defendant's contention that the Supreme Court should not have issued an orderof protection in favor of an individual who was not a "witness" within the meaning ofCPL 530.13 (4) (a) is without merit. That statute provides, as relevant here, that when acourt is sentencing a defendant on a conviction for "any offense," it may issue an order ofprotection directing the defendant to stay away from "any witness . . . ofsuch offense" (CPL 530.13 [4] [a]). Here, the record reflects that the order of protectionwas issued in favor of an individual who had information that was relevant to the offenseto which the defendant pleaded guilty (cf. People v Hanniford, 174 AD3d 921, 922 [2019]; People v Cooke, 119 AD3d1399, 1401 [2014], affd 24 NY3d 1196 [2015]; People v Creighton,298 AD2d 774, 776 [2002]). Accordingly, contrary to the defendant's contention, thecourt had the authority to issue an order of protection in favor of that individual (see generally People v Harder,177 AD3d 1336, 1337 [2019]; cf. Penal Law §§ 215.00,215.15). To the extent that the Appellate Division, Third Department, has construed thestatute more narrowly (seePeople v Myers, 163 AD3d 1152, 1156 [2018]; People v Somerville, 72 AD3d1285, 1288 [2010]; accordPeople v Trombley, 91 AD3d 1197, 1203 [2012]; People v Malone, 3 AD3d795, 797 [2004]), we decline to adopt that construction (see generallyMcKinney's Cons Laws of NY, Book 1, Statutes §§ 275, 321).
The defendant's challenge to the duration of the order of protection is unpreservedfor appellate review (see Peoplev Nieves, 2 NY3d 310, 315 [2004]), and, under the circumstances, we decline toreview that issue in the exercise of our interest of justice jurisdiction (see People v Torres, 179 AD3d1102 [2020]; People vFlores, 178 AD3d 726, 726 [2019]). "[T]he better practice—and best useof judicial resources—is for a defendant . . . to request relief from theissuing court in the first instance, resorting to the appellate courts only if necessary"(People v Nieves, 2 NY3d at 317). Mastro, J.P., Leventhal, Miller, Duffy andLaSalle, JJ., concur.