People v. Torres

• Decision Date: 29 January 2020
• Docket Number: 2018–03507,S.C.I. Nos. 173/18, 174/18,2018–03504
• Citation: 114 N.Y.S.3d 715 (Mem),179 A.D.3d 1102
• Parties: The PEOPLE, etc., respondent, v. Isaias TORRES, appellant.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 1102

114 N.Y.S.3d 715 (Mem)

The PEOPLE, etc., respondent,

v.Isaias TORRES, appellant.

2018–03504

2018–03507

S.C.I. Nos. 173/18, 174/18

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

Submitted - December 18, 2019

January 29, 2020

Janet E. Sabel, New York, N.Y. (Dalourny Nemorin of counsel), for appellant) for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Johnnette Traill of counsel; Victor Randall on the memorandum), for respondent.

REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeals by the defendant from two judgments of the Supreme Court, Queens County (Gia Morris, J.), both rendered February 13, 2018, convicting him of burglary in the third degree under Superior Court Information No. 173/18, and burglary in the third degree under Superior Court Information No. 174/18, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bryant, 28 N.Y.3d 1094, 45 N.Y.S.3d 335, 68 N.E.3d 60 ; People v. Sanders, 25 N.Y.3d 337, 339–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Batista, 167 A.D.3d 69, 75, 86 N.Y.S.3d 492 ). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentences imposed were excessive (see People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

Contrary to the People's contention, the defendant's valid appeal waiver did not encompass the right to challenge the validity of an order of protection issued against the defendant at the time of sentencing (see People v. Castillo, 174 A.D.3d 918, 103 N.Y.S.3d 317 ; People v. Seay, 172 A.D.3d 756, 757, 97 N.Y.S.3d 501 ). However, the defendant's challenge to 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 ; see People v. Flores, 178 A.D.3d 726, 111 N.Y.S.3d 242 [2d Dept. 2019] ), and we decline to review it in the exercise of our interest of justice jurisdiction. "[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, ...