Opinion
03-27-2024
The PEOPLE, etc., respondent, v. Frankie CHERRY, appellant.
Patricia Pazner, New York, NY (Steven C. Kuza of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Avshalom Yotam of counsel; Darci Siegel on the memorandum), for respondent.
Patricia Pazner, New York, NY (Steven C. Kuza of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Avshalom Yotam of counsel; Darci Siegel on the memorandum), for respondent.
VALERIE BRATHWAITE NELSON, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, CARL J. LANDICINO, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Raymond L. Rodriguez, J.), rendered March 23, 2022, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Cooper, 220 A.D.3d 714, 714, 195 N.Y.S.3d 813). The defendant’s valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (People v. Cooper, 220 A.D.3d at 714, 195 N.Y.S.3d 813; People v. Porter, 210 A.D.3d 911, 911, 176 N.Y.S.3d 788).
The defendant’s contentions that the order of protection issued at the time of sentencing should be vacated because it failed to comply with CPL 530.13 or modified because it failed to take into account the defendant’s jail-time credit for the period he was incarcerated while the criminal action was pending are unpreserved for appellate review, as the defendant failed to object to the order of protection at sentencing or otherwise raise those issues before the Supreme Court (see CPL 470.05[2]; People v. Martinez, 214 A.D.3d 1004, 184 N.Y.S.3d 608; People v. Portillo, 196 A.D.3d 605, 606, 147 N.Y.S.3d 455). Moreover, "[b]ecause 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" (People v. Nieves, 2 N.Y.3d 310, 317, 778 N.Y.S.2d 751, 811 N.E.2d 13). Under the circumstances presented, we decline to review the defendant’s unpreserved contentions in the exercise of our interest of justice jurisdiction (see People v. Martinez, 214 A.D.3d 1004, 184 N.Y.S.3d 608; People v. Portillo, 196 A.D.3d at 606, 147 N.Y.S.3d 455).
BRATHWAITE NELSON, J.P., CHRISTOPHER, FORD and LANDICINO, JJ., concur.