People v. Owens

<div>People v Owens - 2026 NY Slip Op 02513

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<nav> <ol> <li>Home</li> <li>All Court Decisions</li> <li>Decisions</li> </ol> </nav> <div> <div> <h1>People v Owens</h1> <p>2026 NY Slip Op 02513</p> <p>April 24, 2026</p> <p>Appellate Division, Fourth Department</p> <p>Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.</p> <p>This decision is uncorrected and subject to revision before publication in the Official Reports.</p> </div> <div> <p>THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,</p> <p>v</p> <p>PHILLIP OWENS, DEFENDANT-APPELLANT. (APPEAL NO. 1.)</p> </div> <p>Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department</p> <p>Decided on April 24, 2026</p> <p>137 KA 23-00945</p> <p>Present: Whalen, P.J., Lindley, Curran, Smith, And Delconte, JJ.</p> <div> <p>KAMAN BERLOVE LLP, ROCHESTER (BRYANNE L. JONES OF COUNSEL), FOR DEFENDANT-APPELLANT.</p> <p>SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.</p> </div> <p> </p><p> Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), rendered February 8, 2023. The judgment convicted defendant upon a plea of guilty of criminal possession of a weapon in the second degree. </p> <p></p>[*1] <p>It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed, the judgment is modified as a matter of discretion in the interest of justice and on the law by vacating the order of protection, and as modified the judgment is affirmed.</p> <p>Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and, in appeal No. 2, defendant appeals from a resentence on that conviction.</p> <p>We note at the outset that, inasmuch as the sentence in appeal No. 1 was superseded by the resentence in appeal No. 2, the appeal from the judgment in appeal No. 1 insofar as it imposed sentence must be dismissed (<i>see</i> <i>People v Weathington </i>[appeal No. 2], 141 AD3d 1173, 1173 [4th Dept 2016], <i>lv denied</i> 28 NY3d 975 [2016]; <i>People v Primm</i>, 57 AD3d 1525, 1525 [4th Dept 2008], <i>lv denied </i>12 NY3d 820 [2009]).</p> <p>Defendant contends in appeal No. 1 that Supreme Court had no authority to issue an order of protection in favor of an individual who was neither a victim of nor a witness to the crime to which defendant pleaded guilty (<i>see</i> CPL 530.13 [4] [a]; <i>People v Campbell</i>, 231 AD3d 1168, 1169 [2d Dept 2024], <i>lv denied</i> 42 NY3d 1052 [2024]; <i>People v Farrell</i>, 201 AD3d 1367, 1368 [4th Dept 2022]). Although defendant failed to preserve that contention for our review inasmuch as he did not object to the order of protection on that ground when it was issued (<i>see People v Shampine</i>, 31 AD3d 1163, 1164 [4th Dept 2006]), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (<i>see</i> CPL 470.15 [3] [c]; <i>People v Raduns</i>, 70 AD3d 1355, 1355 [4th Dept 2010], <i>lv denied</i> 14 NY3d 891 [2010], <i>reconsideration denied</i> 15 NY3d 808 [2010]). We agree with defendant that the order of protection is invalid (<i>see Raduns</i>, 70 AD3d at 1355;<i> People v Creighton</i>, 298 AD2d 774, 776 [3d Dept 2002], <i>lv denied </i>99 NY2d 613 [2003]), and we therefore modify the judgment in appeal No. 1 by vacating the order of protection (<i>see Raduns</i>, 70 AD3d at 1355).</p> <p>We reject defendant's further contention that the court erred in refusing to entertain his pro se motion to withdraw his plea. Where, as here, a defendant is represented by defense counsel in a proceeding, "the decision to entertain [pro se] motions [filed by a represented defendant] lies within the sound discretion of the trial court" inasmuch as "a criminal defendant is not entitled to hybrid representation" (<i>People v Johnson</i>, 195 AD3d 1420, 1420-1421 [4th <span>[*2]</span>Dept 2021], <i>lv denied</i> 37 NY3d 1146 [2021] [internal quotation marks omitted];<i> see</i> <i>People v Rodriguez</i>, 95 NY2d 497, 500 [2000]; <i>People v Fowler</i>, 136 AD3d 1395, 1395 [4th Dept 2016], <i>lv denied </i>27 NY3d 996 [2016], <i>reconsideration denied</i> 27 NY3d 1132 [2016]). Here, we conclude that the court did not abuse its discretion in declining to hear defendant's pro se motion to withdraw his plea (<i>see Johnson</i>, 195 AD3d at 1421; <i>Fowler</i>, 136 AD3d at 1395).</p> <p>In appeal No. 2, defendant contends, and the People correctly concede, that the court erred in resentencing defendant in absentia. A defendant has a right to be personally present at the time sentence is pronounced, including at resentencing (<i>see </i>CPL 380.40; <i>People v Estremera</i>, 30 NY3d 268, 271-273 [2017]; <i>People v Diefenbacher</i>, 21 AD3d 1293, 1295 [4th Dept 2005], <i>lv denied</i> 6 NY3d 775 [2006]). We therefore reverse the resentence, and we remit the matter to Supreme Court for further resentencing, at which time defendant must be afforded the opportunity to appear with counsel (<i>see Diefenbacher</i>, 21 AD3d at 1295).</p> <p>We have considered defendant's remaining contentions in each appeal and conclude that they are without merit.</p> <p>Entered: April 24, 2026</p> <p>Ann Dillon Flynn</p> <p>Clerk of the Court</p> </div>

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