What did the court decide about the order of protection?

The court vacated the order of protection because it was issued in favor of someone who was neither a victim nor a witness to the crime, and therefore was invalid.

Can the defendant still challenge his guilty plea?

The court rejected his pro se motion to withdraw the plea because he was represented by counsel and the court did not abuse its discretion in refusing hybrid representation.

What happens about the sentence?

The resentencing that occurred while the defendant was absent was reversed; the case is remitted for a new resentencing at which the defendant must be present with counsel.

Who is affected by this decision?

Primarily the defendant, the individual previously covered by the vacated order of protection, and the trial court, which must conduct a new sentencing with the defendant present.

People v. Owens

Docket 137 KA 23-00945

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

Criminal Appeal

Filed: Apr 24, 2026 · 1 week ago
Jurisdiction: New York
Court: Appellate Division of the Supreme Court of the State of New York
Type: Opinion
Case type: Criminal Appeal
Citation: 2026 NY Slip Op 02513
Docket: 137 KA 23-00945

Appeal from a judgment convicting defendant upon a guilty plea to criminal possession of a weapon in the second degree and a separate appeal challenging a resentencing

Summary

The Appellate Division, Fourth Department reviewed two related appeals by Phillip Owens arising from his guilty plea to second-degree criminal possession of a weapon. The court dismissed the portion of the first appeal challenging sentence because it was superseded by a later resentencing, vacated an invalid order of protection that had been imposed for a nonvictim/nonwitness, and rejected Owens's request to have his plea withdrawn because the trial court did not abuse its discretion in declining to entertain a pro se motion while counsel represented him. The court reversed the in‑absentia resentencing and remitted for a new sentencing at which Owens must be present with counsel.

Issues Decided

Whether the trial court had authority to issue an order of protection in favor of an individual who was neither a victim nor a witness to the crime to which defendant pleaded guilty
Whether the court erred in refusing to entertain defendant's pro se motion to withdraw his guilty plea when he was represented by counsel
Whether resentencing held in defendant's absence was lawful

Court's Reasoning

The court found the order of protection invalid because statutory authority allows such orders only for victims or witnesses of the charged crime, and the protected person here was neither. Although the defendant failed to preserve the objection to the order, the appellate court reviewed and vacated it in the interest of justice. The court declined to allow hybrid representation, holding that a judge may refuse to entertain pro se motions from a defendant who is represented by counsel and found no abuse of discretion. Finally, resentencing conducted while the defendant was absent violated his statutory and constitutional right to be present, requiring reversal and remand for resentencing with the defendant present.

Authorities Cited

Penal Law § 265.03(3)
CPL 530.13(4)(a)
CPL 380.40
People v Estremera30 NY3d 268 (2017)
People v Rodriguez95 NY2d 497 (2000)

Parties

Appellant: Phillip Owens
Respondent: The People of the State of New York
Judge: Alex R. Renzi
Attorney: Bryanne L. Jones
Attorney: Martin P. McCarthy, II

Key Dates

Decision date: 2026-04-24
Original judgment date: 2023-02-08

What You Should Do Next

1
Prepare for resentencing
Defense counsel should coordinate with the court to schedule the resentencing and ensure the defendant will be personally present with counsel.
2
Confirm vacatur of order of protection
Defense counsel or the defendant should obtain and retain a copy of the modified judgment showing the order of protection has been vacated and notify the person previously named if appropriate.
3
Consider further appeals or motions
If the People or defendant believe there are additional grounds for relief, counsel should evaluate the possibility of seeking leave to appeal to a higher court or filing appropriate postjudgment motions.

Frequently Asked Questions

What did the court decide about the order of protection?: The court vacated the order of protection because it was issued in favor of someone who was neither a victim nor a witness to the crime, and therefore was invalid.
Can the defendant still challenge his guilty plea?: The court rejected his pro se motion to withdraw the plea because he was represented by counsel and the court did not abuse its discretion in refusing hybrid representation.
What happens about the sentence?: The resentencing that occurred while the defendant was absent was reversed; the case is remitted for a new resentencing at which the defendant must be present with counsel.
Who is affected by this decision?: Primarily the defendant, the individual previously covered by the vacated order of protection, and the trial court, which must conduct a new sentencing with the defendant present.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

People v Owens - 2026 NY Slip Op 02513

People v Owens

2026 NY Slip Op 02513

April 24, 2026

Appellate Division, Fourth Department

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

PHILLIP OWENS, DEFENDANT-APPELLANT. (APPEAL NO. 1.)

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on April 24, 2026

137 KA 23-00945

Present: Whalen, P.J., Lindley, Curran, Smith, And Delconte, JJ.

KAMAN BERLOVE LLP, ROCHESTER (BRYANNE L. JONES OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.

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.

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.

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.

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 (
see

People v Weathington
[appeal No. 2], 141 AD3d 1173, 1173 [4th Dept 2016],
lv denied
28 NY3d 975 [2016];
People v Primm
, 57 AD3d 1525, 1525 [4th Dept 2008],
lv denied
12 NY3d 820 [2009]).

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 (
see
CPL 530.13 [4] [a];
People v Campbell
, 231 AD3d 1168, 1169 [2d Dept 2024],
lv denied
42 NY3d 1052 [2024];
People v Farrell
, 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 (
see People v Shampine
, 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 (
see
CPL 470.15 [3] [c];
People v Raduns
, 70 AD3d 1355, 1355 [4th Dept 2010],
lv denied
14 NY3d 891 [2010],
reconsideration denied
15 NY3d 808 [2010]). We agree with defendant that the order of protection is invalid (
see Raduns
, 70 AD3d at 1355;
People v Creighton
, 298 AD2d 774, 776 [3d Dept 2002],
lv denied
99 NY2d 613 [2003]), and we therefore modify the judgment in appeal No. 1 by vacating the order of protection (
see Raduns
, 70 AD3d at 1355).

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" (
People v Johnson
, 195 AD3d 1420, 1420-1421 [4th
Dept 2021],
lv denied
37 NY3d 1146 [2021] [internal quotation marks omitted];
see

People v Rodriguez
, 95 NY2d 497, 500 [2000];
People v Fowler
, 136 AD3d 1395, 1395 [4th Dept 2016],
lv denied
27 NY3d 996 [2016],
reconsideration denied
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 (
see Johnson
, 195 AD3d at 1421;
Fowler
, 136 AD3d at 1395).

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 (
see
CPL 380.40;
People v Estremera
, 30 NY3d 268, 271-273 [2017];
People v Diefenbacher
, 21 AD3d 1293, 1295 [4th Dept 2005],
lv denied
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 (
see Diefenbacher
, 21 AD3d at 1295).

We have considered defendant's remaining contentions in each appeal and conclude that they are without merit.

Entered: April 24, 2026

Ann Dillon Flynn