People v. Nieves

• Decision Date: 06 May 2004
• Citation: 2 N.Y.3d 310,778 N.Y.S.2d 751,811 N.E.2d 13
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellant, v. ISRAEL NIEVES, Appellant-Respondent.
• Court: New York Court of Appeals Court of Appeals

2 N.Y.3d 310

811 N.E.2d 13

778 N.Y.S.2d 751

THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellant, v. ISRAEL NIEVES, Appellant-Respondent.

Court of Appeals of the State of New York.

Argued March 24, 2004.

Decided May 6, 2004.

Legal Aid Society of Westchester County, White Plains (Salvatore A. Gaetani and Stephen J. Pittari of counsel), for appellant-respondent.

Jeanine Pirro, District Attorney, White Plains (Richard L. Hecht and Lois Cullen Valerio of counsel), for respondent-appellant.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur.

OPINION OF THE COURT

GRAFFEO, J.

In these cross appeals, we must determine whether orders of protection issued during a sentencing proceeding in a criminal case can be challenged on direct appeal from the judgment of conviction and, if so, whether defendant's arguments on appeal to this Court had to be raised before the sentencing court under our preservation rule. Although we hold that the permanent orders of protection in this case were appealable as part of the judgment, we conclude that defendant's unpreserved claims are not reviewable in this Court.

Defendant Israel Nieves was involved in an altercation in which he shot and injured two men. As a result of the incident, he was charged with criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, reckless endangerment and two counts of assault in the first degree. The People offered evidence at a nonjury trial that defendant encountered two female friends just after the women had been ejected from a nightclub for fighting with a male patron. Armed with a loaded weapon, defendant drove the women back to the nightclub where they found the patron they had been fighting with standing outside the club with a male friend. During the street confrontation that erupted among defendant, the patron and at least one of his friends, defendant shot the patron and the male friend, causing serious injuries. Defendant then left the scene in his car but was later apprehended by the police after they saw him attempt to dispose of the handgun.

Asserting that the two men had been the aggressors and had initiated the violent confrontation, defendant presented a justification defense at his bench trial. The two women corroborated defendant's account of the incident. The trial court acquitted defendant of the assault-related offenses but convicted him of criminal possession of a weapon in the third degree, a lesser included offense of criminal possession of a weapon in the second degree.

On October 12, 2001, defendant was sentenced as a second felony offender to a determinate term of three years incarceration, the minimum sentence available. During the sentencing proceeding, the court issued two orders of protection under CPL 530.13 (4), one for each of the men shot in the course of the incident. The statute provides that "[t]he duration of such an order shall be fixed by the court and, in the case of a felony conviction, shall not exceed the greater of: (i) five years from the date of such conviction, or (ii) three years from the date of the expiration of the maximum term of an indeterminate or the term of a determinate sentence of imprisonment actually imposed" (CPL 530.13 [4]). In this case, the orders of protection, directing defendant to "[s]tay away" from the men and to refrain from harassing them, were to expire on October 12, 2007—precisely three years from the date the sentencing court expected defendant to be released from prison on completion of his determinate sentence. Defendant raised no objection to the issuance of the permanent orders of protection.¹

In his direct appeal to the Appellate Division, defendant claimed for the first time that the orders of protection exceeded both the duration and the scope authorized in CPL 530.13 (4). With respect to duration, defendant noted that after he was remanded to state custody following sentencing, the Department of Correctional Services (DOCS) calculated his jail time credit, accounting for the time he had been incarcerated while the criminal action was pending.² As a result of such credit, defendant's release from prison would occur earlier than the sentencing court had expected and, if the expiration dates on the orders of protection were not adjusted, he contended that the orders would remain effective beyond the maximum time period allowed by CPL 530.13 (4). Defendant also asserted that the orders were flawed in scope because they had been issued to protect the two men he shot. Due to his acquittal on each of the assault-related offenses, defendant argued that these individuals were not victims but were, instead, witnesses who were entitled to less protection under the statute.

The People objected to the fact that defendant was raising these issues on direct appeal, taking the position that defendant should have brought a motion in the sentencing court seeking adjustment of the orders of protection. On the merits, the People did not dispute that the orders needed to be amended to reflect the jail time credit calculation but contended that the orders were appropriate in scope because CPL 530.13 grants a court broad discretion to determine the conditions to impose on a defendant when issuing orders of protection, regardless of whether the orders protect victims or witnesses.

The Appellate Division modified the judgment, concluding that the expiration date on the orders of protection must be changed to reflect the jail time credit calculation but otherwise rejecting defendant's remaining arguments. The Court remitted the matter to the sentencing court to issue amended orders of protection with corrected expiration dates. A Judge of this Court granted the cross applications of defendant and the People for leave to appeal.

I.

The threshold question is whether the orders of protection defendant challenges fall within the class of determinations in criminal cases that may be appealed. Appealability of determinations adverse to a defendant cannot be presumed because "a defendant's right to appeal within the criminal procedure universe is purely statutory" (People v Stevens, 91 NY2d 270, 278 [1998] [citations omitted]). CPL 530.13 does not contain a provision addressing whether orders of protection are appealable and CPL article 450, the provision generally addressing criminal appeals, also does not explicitly reference orders of protection. But CPL 450.10 authorizes a defendant to appeal from a judgment in a criminal case, which brings up for review many of the orders and rulings that precede or are part of it.

In Stevens, this Court held that postjudgment risk level determinations under the Sex Offender Registration Act (SORA) were not appealable because they "are not a part of the criminal action or its final adjudication" (91 NY2d at 277 [citations omitted]). In contrast, in People v Hernandez (93 NY2d 261 [1999]), we ruled that certification as a sex offender under SORA—a determination issued at the time of sentencing—was appealable as part of the judgment of conviction.³ In reaching that result, we noted that the Legislature mandated that SORA certification occur "upon conviction" (Correction Law § 168-d [1] [a]) and had contemplated that such a determination would be part of the final adjudication of the criminal proceedings against defendant.

Like the SORA certification at issue in Hernandez, CPL 530.13 (4) authorizes a court to issue permanent orders of protection for the benefit of victims and witnesses "[u]pon conviction of any offense." By using this language, the Legislature signaled that orders of protection issued at sentencing are part of the final adjudication of the criminal action involving defendant. We therefore conclude that permanent orders of protection entered "[u]pon conviction" under CPL 530.13 (4) are among the orders and rulings that a defendant may challenge in an appeal from the judgment of conviction. As such, the orders in this case were subject to appellate review pursuant to CPL 450.10 and the Appellate Division did not err in declining to dismiss defendant's appeal.

II.

Having decided that permanent orders of protection are appealable, we turn to defendant's challenges to the contents of the orders. Because this Court's jurisdiction is limited to review of issues of law, our first task is to assess whether the arguments raised on appeal present questions that were preserved by specific objection in the trial court. Here, defendant acknowledges that he did not object to the orders of protection at sentencing but nonetheless contends that his arguments are reviewable because his claims fall within the illegal sentence exception to the preservation requirement. We disagree.

We have recognized "a narrow exception to the preservation rule" (People v Samms, 95 NY2d 52, 56 [2000]) where a court exceeds its powers and imposes a sentence that is illegal in a respect that is readily discernible from the trial record. Commonly referred to as the "illegal sentence" exception, this rule allows this Court to review certain issues despite the absence of a timely objection at the trial court level. But not all claims arising during a sentencing proceeding fall within the exception. For example, challenges to the court's procedures, evidentiary disputes and claims that rely on documents or facts not otherwise developed in the record must be preserved by timely objection in the sentencing court (id. at 57-58; see People v Horne, 97 NY2d 404, 414 n 3 [2002]

; People v Smith, 73 NY2d 961 [1989]; People v Oliver, 63 NY2d 973 [1984]; see generally People v Gonzalez, 99 NY2d 76, 83 [2002]).

Here, although the orders of protection were issued at the sentencing proceeding, it is evident from the statutory scheme that the orders were not a part of defendant's sentence. CPL 530.13 (4) does not characterize permanent orders of protection as a component of...