People v. Nicholson

• Decision Date: 13 January 2021
• Docket Number: 2018–11537,Ind.No. 242/18
• Citation: 190 A.D.3d 768,135 N.Y.S.3d 853 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Jamel NICHOLSON, appellant.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 768

135 N.Y.S.3d 853 (Mem)

The PEOPLE, etc., respondent,

v.Jamel NICHOLSON, appellant.

2018–11537

Ind.No. 242/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—December 14, 2020

January 13, 2021

Janet E. Sabel, New York, N.Y. (Kristina Schwarz of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Arieh Schulman of counsel), for respondent.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (William Miller, J.), rendered August 21, 2018, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Pursuant to a plea agreement, the defendant pleaded guilty to burglary in the second degree in exchange for a one-year term of imprisonment. The Supreme Court sentenced the defendant in accordance with the terms of the plea agreement, and issued an order of protection in favor of a witness. The defendant appeals.

The defendant contends that the subject order of protection should be vacated on the basis that Supreme Court failed to articulate on the record its reasons for issuing the order as required by CPL 530.13(4), and also erred in setting the duration of the order. The defendant's contentions are unpreserved for appellate review, as he failed to raise them at sentencing or move to amend the order of protection on these grounds (see CPL 470.05[2] ; People v. Nieves, 2 N.Y.3d 310, 316–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 ; People v. Ramos, 164 A.D.3d 922, 923, 82 N.Y.S.3d 103 ; People v. O'Connor, 136 A.D.3d 945, 24 N.Y.S.3d 918 ; People v. Fortier, 130 A.D.3d 642, 643, 12 N.Y.S.3d 283 ). We decline to reach these issues in the exercise of our interest of justice jurisdiction (see People v. Colon, 187 A.D.3d 780, 130 N.Y.S.3d 344 ; People v. Daniel A., 183 A.D.3d 909, 124 N.Y.S.3d 365 ; People v. Rodriguez, 157 A.D.3d 971, 67 N.Y.S.3d 485 ). "[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 ; see People v. Daniel A., 183 A.D.3d 909, 124 N.Y.S.3d 365 ).

DILLON, J.P., HINDS–RADIX, BRATHWAITE NELSON and WOOTEN, JJ., concur.