People v. Nieves, 2 N.Y.3d 310 (2004)
Permanent orders of protection issued at sentencing are appealable as part of the judgment of conviction, but unpreserved challenges to those orders are generally not reviewable by the Court of Appeals unless they fall within the narrow ‘illegal sentence’ exception.
Summary
Defendant Nieves was convicted of criminal possession of a weapon. At sentencing, the court issued orders of protection for the two men he shot, ordering him to stay away from them until a date three years after his expected release. Nieves appealed, arguing the orders (1) exceeded the permissible duration under CPL 530.13(4) because jail time credit would result in an earlier release and (2) were improperly issued to the shooting victims because he was acquitted of assault charges. The Court of Appeals held the orders were appealable as part of the judgment but that Nieves’s challenges were unpreserved and did not fall within the illegal sentence exception. Therefore, the Court of Appeals could not review the merits of those challenges.
Facts
Nieves shot and injured two men after an altercation outside a nightclub. He was charged with multiple offenses, including assault. At trial, Nieves claimed he acted in self-defense, but he was acquitted of the assault charges and convicted of criminal possession of a weapon in the third degree. During the sentencing proceeding, the trial court issued orders of protection for the two men Nieves shot, directing him to stay away from them until October 12, 2007 – three years from his expected release date. Nieves did not object to the orders at sentencing.
Procedural History
At the Appellate Division, Nieves argued the orders of protection were improper in duration and scope. He argued the orders should reflect his jail time credit, which would result in an earlier release date and should not have included the shooting victims as they were not victims, but witnesses, because of the acquittal on the assault charges. The Appellate Division modified the judgment to reflect the jail time credit but rejected Nieves’s other arguments. Both Nieves and the People appealed. The Court of Appeals affirmed the Appellate Division’s order with respect to Nieves’s appeal and dismissed the People’s appeal.
Issue(s)
1. Whether orders of protection issued during a sentencing proceeding in a criminal case can be challenged on direct appeal from the judgment of conviction.
2. Whether the defendant’s arguments on appeal to the Court of Appeals had to be raised before the sentencing court to be preserved for review.
Holding
1. Yes, because CPL 530.13(4) authorizes a court to issue permanent orders of protection for victims and witnesses “[u]pon conviction of any offense,” indicating the legislature intended such orders to be part of the final adjudication.
2. Yes, because the defendant’s claims did not fall within the narrow exception to the preservation requirement for illegal sentences.
Court’s Reasoning
The Court reasoned that the appealability of determinations in criminal cases is purely statutory. While CPL 530.13 does not explicitly address the appealability of orders of protection, CPL 450.10 authorizes appeals from a judgment in a criminal case, which brings up for review many preceding orders and rulings.
Distinguishing from People v. Stevens, where the Court held that post-judgment SORA determinations were not appealable because they were not part of the criminal action, the Court relied on People v. Hernandez, which held that SORA certification at sentencing *was* appealable. The Court stated that, like the SORA certification 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.” The use of this language indicates the Legislature viewed orders of protection as part of the final adjudication.
Addressing the preservation issue, the Court acknowledged the “narrow exception to the preservation rule” (People v. Samms, 95 N.Y.2d 52, 56 [2000]) where a court exceeds its powers and imposes a sentence that is illegal. However, the Court found that CPL 530.13(4) does not characterize permanent orders of protection as a component of sentencing, and the statute authorizes temporary orders during the pendency of criminal proceedings, indicating that the Legislature did not intend orders of protection to be punitive.
The Court noted the primary intent of the statute is to ensure that victims and “witnesses who have the courage and civic responsibility to cooperate with law enforcement officials are afforded the maximum protection possible” (Governor’s Mem approving L 1998, ch 610, 1998 McKinney’s Session Laws of NY, at 1485).
The Court observed that orders of protection are an “ameliorative measure intended to safeguard the rights of victims and witnesses both prior to and after conviction—it is not a part of the sentence imposed.” Therefore, the Court held defendant’s challenges did not fall within the illegal sentence exception and were unpreserved.
As a practical matter, the Court noted that seeking adjustment of the order of protection from the issuing court is the most desirable means for resolving an expiration date issue. The Court stated, “Because sentencing courts are in the best position to amend permanent orders of protection, the better practice—and best use of judicial resources—is for a defendant seeking adjustment of such an order to request relief from the issuing court in the first instance, resorting to the appellate courts only if necessary.”