Opinion
2013NY084659
03-23-2015
The People of the State of New York v. Warren Brown, Defendant.
For the Defendant: Raiser & Kenniff, P.C., by Bruce R. Connolly, Esq.
For the Defendant: Raiser & Kenniff, P.C., by Bruce R. Connolly, Esq.
On February 18, 2014, the defendant, Warren Brown, pled guilty to Aggravated Harassment in the Second Degree, in violation of Penal Law §240.30(1)(a). Defendant now moves pursuant to CPL § 440.10 to vacate that conviction, seeking relief under People v. Golb, 23 NY3d 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) is unconstitutional.
The statute has since been amended.
This Court has already considered, and rejected, this argument. In People v. Fulcher, 45 Misc 3d 1219(A) (Crim Ct NY County 2014) (Statsinger, J.), the Court held that a 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. See CPL § 440.10(2)(c).Accordingly, defendant's motion to vacate is DENIED.
I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, on November 1, 2013, the defendant violated Penal Law § 240.30(1), in that during a telephone call, he verbally threatened the complainant, with whom he had a child in common. Specifically, he said, "I am going to kill you and kill him. I am going to put a bullet in your head." The defendant is also alleged to have sent her text messages stating "I'll make a movie" and "Three cars deep. Ready to ride. Ten minutes from your death wish."
B. Legal Proceedings
1. The Underlying Case
On November 5, 2013, defendant was arraigned on a Misdemeanor Complaint charging him with two counts of Aggravated Harassment in the Second Degree, in violation of Penal Law § 240.30(1), and two counts of Harassment in the Second Degree, in violation of Penal Law § 240.26(1). On November 8, the People filed a Supporting Deposition from the complainant.
On February 18, 2014, defendant pled guilty to violating Penal Law § 240.30(1)(a), and the Court sentenced him to a term of 45 days of imprisonment and a full and final order of protection in favor of the complainant. Defendant did not appeal.
2. The Motion Pursuant to CPL 440.10
Defense counsel filed a written motion to vacate pursuant CPL § 440.10(1)(h) on March 10, 2015. The matter has been sub judice since then.
II. DISCUSSION
Defendant's claim that his conviction should be vacated because the statute under which he was convicted has subsequently been held unconstitutional seems, at least superficially, to have some force. However, relief under CPL § 440.10 is unavailable to this defendant, since he unjustifiably failed to appeal his conviction on the ground that § 240.30(1)(a) was unconstitutional on its face.
A. Retroactivity of Golb
Whether Golb applies retroactively on collateral review is a surprisingly difficult question to answer. CPL § 440.10(h) provides that a court may vacate a judgment where the conviction "was obtained in violation of a right of the defendant under the constitution of this state or of the United States." It would appear that this language might cover cases in which a person was convicted under a statute that was subsequently found to be unconstitutional. And yet, there does not appear to be any authority applying § 440.10(1)(h) in such a case.
In the past fifty years, the Court of Appeals has invalidated at least eight criminal statutes in addition to that invalidated in Golb. See People v. Dietze, 75 NY2d 47, 549 N.E.2d 1166, 550 N.Y.S.2d 595 (1989) (harassment under Penal Law 240.25(2)); People v. Bright, 71 NY2d 376, 520 N.E.2d 1355, 526 N.Y.S.2d 66 (1988) (loitering under Penal Law 240.35(7)); People v. Uplinger, 58 NY2d 936, 447 N.E.2d 62, 460 N.Y.S.2d 514 (1983) (Penal Law 240.35(3) - loitering for purpose of deviate sexual intercourse); People v. Onofre, 51 NY2d 476, 415 N.E.2d 936, 434 N.Y.S.2d 947 (1980) (consensual sodomy under Penal Law § 130.38); People v. Abrahams, 40 NY2d 277, 353 N.E.2d 574, 386 N.Y.S.2d 661 (1976) (Sabbath breaking under General Business Law §§ 9 and 12); People v. Berck, 32 NY2d 567, 300 N.E.2d 411, 347 N.Y.S.2d 33 (1973) (loitering under Penal Law 240.35(6)); People v. Bookcase, Inc., 14 NY2d 409, 201 N.E.2d 14, 252 N.Y.S.2d 433 (1964) (former Penal Law 484-h, prohibiting the sale to a minor of any book the cover or content of which is "principally made up of descriptions of illicit sex or sexual immorality"); People v. Bunis, 9 NY2d 1, 172 N.E.2d 273, 210 N.Y.S.2d 505 (1961) (former Penal Law § 436-d, forbidding sale of all coverless magazines).
But this Court has been unable to locate a single published decision discussing whether any of these decisions 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.
B. Procedural Default
For the time being, however, the slate must remain blank. Defendant's motion to vacate cannot be entertained because he procedurally defaulted by unjustifiably failing to file a direct appeal.
A court "must" deny a motion to vacate where, [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.
CPL § 440.10(c)(2); People v. Cuadrado, 9 NY3d 362, 880 N.E.2d 861, 850 N.Y.S.2d 375 (2007). Nor does it matter that the issue presented - that the defendant was convicted under a subsequently invalidated statute - would appear to be of great importance. Even a jurisdictional claim is waived for purposes of a § 440.10 motion if it was not asserted on direct appeal. Id. ("There are obvious good reasons for the Legislature's choice to require that jurisdictional, as well as other, defects that can be raised on direct appeal be raised in that way or not at all.")
The first of the § 440.10(2)(c) circumstances constituting a procedural default is present here; defendant did not appeal the underlying conviction at all, despite the existence of "sufficient facts" on the record for an appeal on this ground. Moreover, defendant's failure to appeal was clearly "unjustifiable," as there was neither a practical nor a legal reason for the failure.
Practically speaking, defendant's failure to appeal was certainly not the result of either a lack of money or a lack of understanding of how to assert his right to appeal. Defendant was represented by The Legal Aid Society throughout the proceedings, and Legal Aid would have continued to represent him, at no cost to the defendant, on appeal. Undoubtedly, Legal Aid knows how to perfect an appeal. In addition, the Court notes that defendant did not waive his right to appeal as a condition of his guilty plea.
Cf. People v. Grubstein, 24 NY3d 500 (2014) (failure to appeal was not "unjustifiable" under 440.10.(2)(c) when defendant was deprived of counsel).
Nor was there a legal impediment to appeal on this ground. Defendant was convicted in February of 2014. By that time, it would have been perfectly clear that a claim that § 240.30(1)(a) was unconstitutional on its face, even if unpreserved, was not frivolous. In 1989, the Court of Appeals invalidated a closely related statute. See Dietze, 75 NY2d at 47, 549 N.E.2d at 1166, 550 N.Y.S.2d at 595. Moreover, the Appellate Division, First Department, had already all but held that § 240.30(1)(a) was unconstitutional on its face. People v. Dupont, 107 AD2d 247, 486 N.Y.S.2d 169 (1st Dept. 1985) (statute was unconstitutionally vague and overbroad as applied to that particular defendant; dicta suggested that statute was invalid on its face). In addition, by 2014, two federal courts had found § 240.30(1)(a) to be unconstitutional. See Vives v. City of New York, 305 F. Supp .2d 289 (S.D.NY 2003), rev'd on other grounds, 405 F.3d 115 (2d Cir. 2005); Schlagler v. Phillips, 985 F.Supp. 419 (S.D.NY 1997), vacated on other grounds, 166 F.3d 439 (2d Cir. 1999).
Notably, there was no controlling New York State precedent to the contrary. People v. Chaves, 13 Misc 3d 782, 827 N.Y.S.2d 480 (Justice Ct., Westchester County 2006), declined to follow Vives , while People v. Cooper, 4 Misc 3d 788, 781 N.Y.S.2d 201 (Dist. Ct. Nassau County 2004), declined to follow both Vives and Schlagler. But neither of those decisions would have been binding on the Appellate Term, First Department, the court that would have entertained this defendant's appeal, had he perfected one. The Court also notes that in People v. Little, 14 Misc 3d 70, 830 N.Y.S.2d 428 (App. Term 2d and 11th Dists. 2006), the court rejected an "as applied" challenge to the statute, but even that decision would not have rendered an appeal to the Appellate Term, First Department, claiming that the statute was unconstitutional on its face, frivolous.
Finally, the Fulcher analysis is not affected by the two subsequent Appellate Division decisions in People v. Edrees, 123 AD3d 842 (2d Dept 2014) (citing People v. Tannenbaum, 23 NY2d 753, 244 N.E.2d 269, 296 N.Y.S.2d 798 (1968)), and People v. Jones, 122 AD3d 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.
Tannenbaum involved a New York obscenity statute that the United States Supreme Court invalidated in unrelated litigation. 23 NY2d at 753, 244 N.E.2d at 269, 296 N.Y.S.2d at 798. The Court of Appeals applied the Supreme Court case retroactively to Tannenbaum's case on direct appeal. Id.
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C. Conclusion
Accordingly, since defendant unjustifiably failed to appeal the conviction on the ground that § 240.30(1)(a) was unconstitutional on its face, he is procedurally barred from making that claim in a motion pursuant to CPL § 440.10.
III. Conclusion
For the foregoing reasons, defendant's motion to vacate his conviction pursuant to CPL 440.10(1)(h) is denied.
This constitutes the Decision and Order of the Court.
Dated: March 23, 2015_______________________
New York County, New YorkSteven M. Statsinger
Judge of the Criminal Court