People v. Foster

• Decision Date: 28 June 2011
• Citation: 927 N.Y.S.2d 92,87 A.D.3d 299,2011 N.Y. Slip Op. 05734
• Parties: The PEOPLE, etc., respondent,v.Wesley FOSTER, appellant.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 299
927 N.Y.S.2d 92
2011 N.Y. Slip Op. 05734

The PEOPLE, etc., respondent,
v.
Wesley FOSTER, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 28, 2011.

[927 N.Y.S.2d 93]

Steven Banks, New York, N.Y. (Laura Boyd of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel), for respondent.PETER B. SKELOS, J.P., RANDALL T. ENG, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.ENG, J.

[87 A.D.3d 301] In July 2006 the Legislature amended Criminal Procedure Law § 530.12(5) to increase the maximum duration of a final order of protection issued in favor of the victim of a felony family offense from five years to eight years. The clear purpose of the amendment was to enhance the protection available to victims of domestic violence. On this appeal, we are asked to determine whether the duration of the final order of protection issued in favor of the victim should be reduced from eight years to five years because the subject offenses were committed before the amendment of CPL 530.12(5) became effective. For the reasons which follow, we conclude that the issuance of an order of protection is not a form of punishment, and that there is no constitutional impediment to the application of the 2006 amendment extending the maximum duration of final orders of protection issued pursuant to CPL 530.12(5) to crimes committed before its effective date.

Between July 5, 2004, and December 23, 2004, the defendant assaulted his former girlfriend on several occasions, broke into her apartment, and repeatedly harassed and stalked her in violation of temporary orders of protection. For these acts, the defendant was charged in two separate indictments with multiple crimes, including burglary in the second degree, attempted assault in the third degree, criminal contempt in the first degree, criminal contempt in the second degree, aggravated

[927 N.Y.S.2d 94]

harassment in the second degree, stalking in the fourth degree, and menacing in the second degree. The two indictments were consolidated on October 24, 2005. Shortly thereafter, on November 16, 2005, the defendant agreed to plead guilty to burglary in the second degree, criminal contempt in the first degree, and criminal contempt in the second degree, in full satisfaction of the consolidated indictment. In exchange for the defendant's plea, the Supreme Court promised him that if he completed a Treatment Alternatives to Street Crimes drug program, it would vacate his plea to burglary in the second degree, and sentence him to concurrent terms of five years' probation for criminal contempt in the first degree and criminal contempt in the second degree. However, the Supreme Court warned the defendant that if he failed to complete drug treatment, his plea to burglary in the second degree would stand, and he would be sentenced to a determinate term of seven years of imprisonment and a period of five years of postrelease supervision for that offense.

[87 A.D.3d 302] During the course of the ensuing plea allocution, the defendant acknowledged that he understood that, by pleading guilty, he was giving up his right to a jury trial, his right to cross-examine witnesses, and his right to testify on his own behalf if he wished to do so. Immediately after the defendant acknowledged that he was giving up these rights, the Supreme Court briefly addressed the issue of a waiver of the right to appeal, explaining that “if you were tried and convicted, you would have the right to appeal the conviction, but you're giving up that right now.” Continuing, the Supreme Court asked the defendant whether he was “willing to give up all those rights and any other rights you have and plead guilty now?,” and he answered “yes.” The defendant then admitted that, nearly one year earlier, on November 23, 2004, he had “knowingly entered unlawfully and remained unlawfully” in the victim's dwelling, that he was aware that she had obtained an order of protection against him, and that he had violated that order of protection.

The defendant failed to complete a drug treatment program despite two opportunities to do so. After the defendant absconded from the second treatment facility in which he had been placed, he remained at large for over a year until he was returned to court on a bench warrant on December 15, 2008. When the defendant subsequently appeared for sentencing on April 22, 2009, the Supreme Court sentenced him to concurrent terms of imprisonment of five years for burglary in the second degree, 2 to 4 years for criminal contempt in the first degree, and one year for criminal contempt in the second degree. The Supreme Court also imposed a five-year term of postrelease supervision. At the end of the sentencing proceeding, the Supreme Court informed the defendant that it was issuing a full order of protection which would be in effect for 13 years, and would bar him from contact with the victim.

On appeal, the defendant challenges only the duration of the final order of protection issued in favor of the victim at sentencing. He contends that the Supreme Court lacked the authority to issue an order of protection which would remain in effect for eight years beyond the expiration of his five-year determinate term of imprisonment because he committed the offenses to which he pleaded guilty before CPL 530.12(5) was amended to increase the maximum duration of final orders of protection. In support of his contention, the defendant relies upon People v. Diggs, 73 A.D.3d 1210, 900 N.Y.S.2d 918, in which this Court held that it was error for the sentencing court to impose certain fees upon a [87 A.D.3d 303] defendant who committed the

[927 N.Y.S.2d 95]

crimes of which he was convicted prior to the enactment of the legislation requiring the imposition of those fees. Although the defendant acknowledges that he was asked to waive the right to appeal as a condition of his plea agreement, he maintains that his waiver cannot be enforced because it was not knowing, voluntary, and intelligent.

In response, the People emphasize that the defendant failed to preserve for appellate review his contention that the duration of the order of protection exceeds the statutorily permissible maximum because he did not raise this issue at sentencing. The People urge this Court not to review the defendant's claim in the interest of justice because the 2006 amendment of CPL 530.12(5) reflects the fact that the Legislature “did not believe that the maximum durations of final orders of protection under the old law ... were sufficiently long to protect residents of the State from being threatened or victimized in the future by those who had threatened or victimized them in the past.” On the merits, the People contend that the Supreme Court properly relied upon the version of CPL 530.12(5) which was in effect at the time of sentencing because an order of protection is not a criminal punishment and, thus, retroactive application of CPL 530.12(5) does not violate the Ex Post Facto Clause of the United States Constitution.

Turning first to the threshold procedural issues presented, we agree with the defendant's contention that his waiver of the right to appeal is unenforceable. The record reveals that, immediately after obtaining the defendant's acknowledgment that he understood the various constitutional trial rights he was forfeiting as a result of his plea of guilty, the Supreme Court advised him that if he were to be “tried and convicted,” he would have the right to appeal, but that he was now giving up that right. This explanation was misleading because it suggests that only defendants who are convicted after trial have a right to appeal. Furthermore, instead of eliciting a specific acknowledgment that the defendant was waiving his right to appeal, the Supreme Court followed up its explanation by asking the defendant whether he was willing to “give up all those rights and any other rights” he possessed and now plead guilty. Without any indication in the record that the defendant understood the distinction between the right to appeal and other trial rights which are automatically forfeited incident to a plea of guilty, we cannot conclude that he knowingly, voluntarily, and intelligently waived his right to appeal ( see People v. Moyett, 7 N.Y.3d 892, 893, 826 N.Y.S.2d 597, 860 N.E.2d 59; [87 A.D.3d 304] People v. Mayo, 77 A.D.3d 683, 684, 908 N.Y.S.2d 353; People v. Gheradi, 68 A.D.3d 892, 890 N.Y.S.2d 122; People v. Olivier, 48 A.D.3d 486, 849 N.Y.S.2d 790).

Although the defendant's waiver of the right to appeal is unenforceable, the People correctly point out that his challenge to the duration of the order of protection is unpreserved for appellate review because he did not raise this issue at sentencing or move to amend the order of protection on this ground ( see CPL 470.05[2]; People v. Nieves, 2 N.Y.3d 310, 778 N.Y.S.2d 751, 811 N.E.2d 13; People v. Maxineau, 78 A.D.3d 732, 909 N.Y.S.2d 659; People v. Langhorne, 60 A.D.3d 867, 875 N.Y.S.2d 529; People...