Summary
In Brown the First Department stated that "It is well established that a defendant must comply with a court order that has not been vacated, unless the issuing court lacked jurisdiction or the order was void on its face...." 189 A.D.3d at 701 (emphasis added).
Summary of this case from People v. CornishOpinion
12624 Ind. No. 3057/14 Case No. 2015-2477
12-29-2020
The PEOPLE of the State of New York, Respondent, v. Warren BROWN, Defendant-Appellant.
Stephen Chu, Interim Attorney–in–Charge, Office of the Appellate Defender, New York (Stephen R. Strother of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Robert Brent Ferguson of counsel), for respondent.
Stephen Chu, Interim Attorney–in–Charge, Office of the Appellate Defender, New York (Stephen R. Strother of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Robert Brent Ferguson of counsel), for respondent.
Renwick, J.P., Gische, Gonza´lez, Scarpulla, Mendez, JJ.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered April 16, 2015, as amended May 20, 2015, convicting defendant, after a jury trial, of criminal contempt in the first degree, petit larceny and two counts of endangering the welfare of a child, and sentencing him, as a second felony offender, to an aggregate term of two to four years, unanimously affirmed.
Defendant was properly convicted of first-degree criminal contempt under Penal Law § 215.51(b)(v) for violating an order of protection that had been issued upon his conviction of second-degree aggravated harassment under former Penal Law § 240.30(1)(a). The contempt conviction was valid even though the Court of Appeals declared that the aggravated harassment provision underlying the order of protection was unconstitutional in People v. Golb, 23 N.Y.3d 455, 991 N.Y.S.2d 792, 15 N.E.3d 805 (2014), cert denied 574 U.S. 1079, 135 S.Ct. 1009, 190 L.Ed.2d 839 (2015). Golb was decided after the order of protection was issued against defendant, but before he violated it.
It is well established that a defendant must comply with a court order that has not been vacated, unless the issuing court lacked jurisdiction or the order was void on its face ( State of New York v. Congress of Racial Equality [C.O.R.E.], 92 A.D.2d 815, 817, 460 N.Y.S.2d 58 [1st Dept. 1983] [citing Ketchum v. Edwards, 153 N.Y. 534, 47 N.E. 918 (1897) ]; see also Rivera v. Smith, 63 N.Y.2d 501, 516, 483 N.Y.S.2d 187, 472 N.E.2d 1015 [1984] ). Obedience to the lawful mandate of the court is required even though it is later held that the order was erroneous, improvidently made, or granted by the court under misapprehension or mistake ( Ketchum, 153 N.Y. at 538–539, 47 N.E. 918 ).
Defendant argues that once the Court of Appeals declared the offense of aggravated harassment in the second degree under former Penal Law § 240.30(1)(a) unconstitutional, the order of protection previously issued against defendant became void on its face. We disagree. The Golb decision did not render defendant's order of protection void on its face, but merely voidable.
Defendant's underlying conviction was final before Golb was decided. The order of protection was indisputably valid at the time of its issuance. After Golb, there are no reported cases holding that convictions under former Penal Law § 240.30(1)(a) are automatically vacated. Instead, where there was vacatur of a conviction or order of protection, it was in response to a request for relief either on appeal or in a posttrial motion (see Matter of Elizabeth T. v. Andrew T., 124 A.D.3d 556, 998 N.Y.S.2d 636 [1st Dept. 2015] [order of protection vacated on direct appeal]; Matter of Lystra Fatimah N. v. Rafael M., 122 A.D.3d 499, 997 N.Y.S.2d 624 [1st Dept. 2014] [order of protection vacated on direct appeal]; People v. Loverde, 151 A.D.3d 1738, 57 N.Y.S.3d 296 [4th Dept. 2017] [references successful posttrial motion to vacate order of protection]; People v. Edrees, 123 A.D.3d 842, 999 N.Y.S.2d 86 [2d Dept. 2014], lv denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015] [conviction vacated on direct appeal] ).
Most importantly, many of the convictions under former Penal Law § 240.30(1)(c), which occurred before Golb was decided, were not vacated at all, notwithstanding that a defendant affirmatively sought such relief ( People v. Scott, 126 A.D.3d 645, 6 N.Y.S.3d 247 [1st Dept. 2015], lv denied 25 N.Y.3d 1171, 15 N.Y.S.3d 302, 36 N.E.3d 105 [2015] [where the defendant failed to preserve any constitutional argument, conviction would not be vacated] ; see also People v. Ward, 136 A.D.3d 504, 24 N.Y.S.3d 512 [1st Dept. 2016], lv denied 28 N.Y.3d 938, 40 N.Y.S.3d 366, 63 N.E.3d 86 [2016] ; People v. Irizarry, 135 A.D.3d 641, 23 N.Y.S.3d 240 [1st Dept. 2016], lv denied 28 N.Y.3d 931, 40 N.Y.S.3d 359, 63 N.E.3d 79 [2016] ). Likewise, orders of protection issued in Family Court predicated on former Penal Law § 240.30(1)(a) were not necessarily vacated following Golb ( Matter of Jaynie S. v. Gaetano D., 134 A.D.3d 473, 22 N.Y.S.3d 12 [1st Dept. 2015], lv denied 26 N.Y.3d 917, 2016 WL 531611 [2016] ). Because not every conviction or order of protection following Golb has been vacated, it stands to reason that an order of protection predicated on such a conviction cannot be void on its face. Instead, it is incumbent upon a defendant to seek relief from such conviction or order, which relief may or may not be granted. Unless and until an order of protection is vacated, it remains enforceable and provides a valid predicate for criminal contempt (see Loverde, 151 A.D.3d at 1738–1739, 57 N.Y.S.3d 296 [criminal conviction for contempt upheld notwithstanding that order of protection was vacated several months after the defendant was indicted for violating it] ).
The defendant in Scott subsequently was denied a writ of habeas corpus in Federal Court. The court held, "the First Department relied on an adequate and independent state ground, New York's contemporaneous objection rule, to deny Scott's Golb claim ..." (Scott v. Graham, 2018 WL 5257613, at *11 [S.D.N.Y. Oct. 22, 2018, 16–Civ–2372 (KPF/JLC) ] ).
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Defendant did not challenge the order of protection by appealing the aggravated harassment conviction against him, and in any event, it is unclear whether such a challenge would have been successful (see People v. Scott, 126 A.D.3d at 646, 6 N.Y.S.3d 247 ). His subsequent CPL 440.10 motion to vacate the conviction and order of protection based on Golb was denied ( People v. Brown, 47 Misc.3d 1201[A], 2015 N.Y. Slip Op. 50355[U], 2015 WL 1295999 [Crim. Ct., N.Y. County 2015] ). Defendant was therefore required to comply with the extant order and his violation constituted criminal contempt (see People v. Ellis, 45 Misc.3d 716, 719–720, 994 N.Y.S.2d 510 [Crim. Ct. N.Y. County 2014], affd 65 Misc.3d 136[A], 2019 N.Y. Slip Op. 51668[U], 2019 WL 5444755 [App. Term, 1st Dept. 2019], lv denied 34 N.Y.3d 1127, 118 N.Y.S.3d 547, 141 N.E.3d 503 [2020] ).