Opinion
10-02-2020
The PEOPLE of the State of New York, Respondent, v. Dillon SMITH, Defendant-Appellant.
Per Curiam.
Judgment of conviction (Anne J. Swern, J.), rendered February 15, 2019, affirmed.
By pleading guilty to the charge of criminal contempt in the second degree, defendant forfeited his argument that the order of protection underlying that charge was invalid (see People v. Konieczny , 2 NY3d 569, 574-576 [2004] ; see also People v. Casey , 95 NY2d 354, 360 [2000] ). "Unlike a challenge to the sufficiency of an accusatory instrument, a challenge to the validity of an underlying order of protection does not assert a nonwaivable jurisdictional defect" ( People v. Ellison , 106 AD3d 419, 420 [2013], lv denied 21 NY3d 1004 [2013] ).
Undoubtedly, defendant could have challenged the validity of the order of protection - an element of the criminal contempt charge - rather than plead guilty. Indeed, prior to pleading guilty on February 15, 2019, defense counsel orally raised the issue of the validity of the order of protection in Criminal Court. When the Court indicated that it was not prepared to rule on the issue without affording the People "a short amount of time to answer ... within a week," defendant opted, instead, to plead guilty. By pleading guilty and waiving prosecution by information, defendant signaled an end to any challenge to the information's factual sufficiency and conceded every element of the offense, including the lawfulness of the order of protection (see People v. Konieczny , 2 NY3d at 577 ). If a defendant can later appeal a knowing and voluntary plea "by resuming the same sufficiency argument the defendant had forsaken in the trial court, it would undermine the finality of the conviction" ( People v. Dumay , 23 NY3d 518, 524 [2014] ). "The unintended result could be prosecutors who are no longer willing to broker plea bargains in misdemeanor cases for fear of endless litigation over the accusatory instrument" (id. ).