Opinion
No. 2013NY097270.
03-16-2015
The PEOPLE of the State of New York, Plaintiff, v. Anthony NICOT, Defendant.
The Legal Aid Society, by Fredric Bennett, for defendant. ADA Megan McDermott, for People.
The Legal Aid Society, by Fredric Bennett, for defendant.
ADA Megan McDermott, for People.
Opinion
STEVEN M. STATSINGER, J.
Defendant files two different motions in two separate cases, each seeking relief under People v. Golb, 23 N.Y.3d 455, 15 N.E.3d 805, 991 N.Y.S.2d 792 (2014), which held that the then-applicable version of Penal Law § 240.30(1)(a) was unconstitutional. In Docket Number 2013NY097270, he moves pursuant to CPL § 440.10 to vacate the conviction on an underlying conviction, while, in Docket Number 2014NY 089634, he moves to dismiss a charge of criminal contempt in the second degree stemming from an allegation that he violated the final order of protection that resulted from his conviction under the earlier docket.
The statute has since been amended.
In deciding these motions, the Court has considered the written arguments of the parties, along with the relevant statutes and case law.
This Court has considered, and rejected, similar arguments before. In People v. Fulcher, 45 Misc.3d 1219(A) (Crim Ct N.Y. County 2014) (Statsinger, J.), the Court held that defendant's failure to appeal on the ground that § 240.30(1)(a) was unconstitutional was an insurmountable procedural bar to relief under CPL § 440.10. And, in People v. Ellis, 45 Misc.3d 716, 994 N.Y.S.2d 510 (Crim Ct N.Y. County 2014) (Statsinger, J.) the Court held that Golb did not automatically “invalidate, as a matter of law, all final orders of protection entered in connection with convictions under” the former § 240.30(1)(a).
Defendant's appeal of the decision in Ellis is currently pending in the Appellate Term, First Department.
Defendant here offers a new twist on those same issues—he was not convicted of violating § 240.30(1)(a) in the underlying case, although that was the offense charged in the information. He pled guilty instead to the added and reduced charge of harassment in the second degree, under Penal Law § 240.26(1), and it is the final order of protection arising from that conviction that he is now accused of violating. Given that defendant was not convicted under the statute invalidated in Golb, his claims for relief are even weaker than those rejected in Fulcher and Ellis. Accordingly, the Court DENIES both motions.
I. FACTUAL BACKGROUND
A. Docket Number 2013NY097270
For this docket, the accusatory instrument alleged that defendant violated Penal Law § 240.30(1)(a) in that, during a telephone call, he verbally threatened the complainant, with whom he had a child in common. Specifically, he told her that if she “destroy[ed his] son's stuff” he was “going to stab [her].” On March 26, 2014, defendant pled guilty to the added and reduced charge of Penal Law § 240l.26(1), and the Court sentenced him to a conditional discharge. The Court also entered a final order of protection in favor of Jasmine Morales, the complainant. That order went into effect on March 26, 2014, and expires on March 25, 2016.
Defendant's conduct unquestionably violated this section, which makes it a violation to, inter alia, “threaten[ ]” to subject another person to “physical contact.”
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Defendant did not appeal this conviction.
B. Docket Number 2014NY089634
The information in this docket alleges that the defendant violated the above order of protection by being present in Ms. Morales' apartment on November 30, 2014. While there, he threatened to stab himself and then call the police and falsely report that Ms. Morales had stabbed him.
Defendant has pled not guilty to this charge.
C. Procedural History
In Docket Number 2014NY089634, defendant moved to dismiss on December 12, 2014. The People responded on January 20, 2015.
On January 20, 2015, defendant filed the CPL § 440.10 motion in Docket Number 2013NY097270. The People elected not to respond. Both motions have accordingly been sub judice since January 20, 2015.
II. DISCUSSION
A. Docket Number 2013NY097270
Defendant's peculiar position here seems to be that because he pled guilty to Penal Law § 240.26(1) in “full satisfaction” of an information that charged him with violating § 240.30(1)(a), he is entitled to the benefit of a retroactive application of Golb. Defendant is wrong.
There is simply no legal basis for this Court to conclude that a conviction under a statute that has not been declared unconstitutional should be invalidated based on a court decision that invalidated a different statute. Furthermore, and as noted in Fulcher, since defendant did not appeal his conviction on this ground, he is procedurally barred from relief under CPL § 440.10, regardless of the merit of the claim. “Even a jurisdictional claim is waived for purposes of a § 440.10 motion if it was not asserted on direct appeal.” 45 Misc.3d 1219(A) at *2.
Finally, the Fulcher analysis is not affected by the two subsequent Appellate Division decisions in People v. Edrees, 123 A.D.3d 842, 999 N.Y.S.2d 86 (2d Dept 2014) (citing People v. Tannenbaum, 23 N.Y.2d 753, 244 N.E.2d 269, 296 N.Y.S.2d 798 (1968) ), and People v. Jones, 122 A.D.3d 549, 997 N.Y.S.2d 413 (1st Dept 2014) (accepting People's concession), each of which held that Golb should be applied retroactively to cases on direct appeal. Neither Edrees nor Jones nor, for that matter, Tannenbaum, mandates applying Golb retroactively on a motion pursuant to CPL § 440.10. As this Court noted in Fulcher, it appears that no New York appellate court has ever held that a decision invalidating a criminal statute should be applied retroactively on collateral review. “[T]his Court has been unable to locate a single published decision discussing whether ... decisions [invalidating a statute] should be applied retroactively on a motion pursuant to CPL § 440.10. There is, in other words, a blank slate as to this extremely important question.”
Accordingly, for these reasons, defendant's CPL § 440.10 motion in Docket Number 2013NY097270 is denied.
B. Docket Number 2014NY089634
Defendant's motion to dismiss the criminal contempt case arising from the final order of protection bears even less discussion. In Ellis, this Court held that Golb did not automatically invalidate orders of protection entered in connection with convictions under the former § 240.30(1)(a). 45 Misc.3d at 716, 994 N.Y.S.2d at 511. As noted above (albeit in the margin), the Ellis decision is presently on appeal. But even if the Appellate Term reverses, there is no chance that that decision would ever be extended to also invalidate a final order of protection entered after a conviction under Penal Law § 240.26(1), a statute that is not unconstitutional.
Accordingly, defendant's motion to dismiss is denied.
III. CONCLUSION
For the foregoing reasons, defendant's motion to vacate pursuant to CPL § 440.10 in Docket Number 2013NY097270 is denied. In addition, defendant's motion to dismiss under Docket Number 2014NY089634 is likewise denied.
This constitutes the Decision and Order of the Court.