People v. Konieczny
| Decision Date | 10 June 2004 |
| Citation | 2 N.Y.3d 569,813 N.E.2d 626,780 N.Y.S.2d 546 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EUGENE KONIECZNY, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Michael J. Violante, Public Defender, Lockport (Joseph G. Frazier of counsel), for appellant.
Matthew J. Murphy, III, District Attorney, Lockport (Thomas H. Brandt of counsel), for respondent.
Defendant was charged with criminal contempt in the second degree based on allegations that he violated an order of protection issued incident to a bad check prosecution. Represented by counsel, he pleaded guilty to attempted criminal contempt in the second degree. On appeal, defendant asserted that his conviction should be reversed and the accusatory instrument dismissed on the ground that the order of protection was invalid under CPL 530.13(4) because the party protected was not a victim or witness in the bad check proceeding. County Court concluded that the argument had been forfeited by defendant's guilty plea. We agree and affirm the judgment of conviction.
In May 2000, defendant appeared in the North Tonawanda City Court with his attorney and entered a guilty plea to disorderly conduct in satisfaction of a bad check charge. He was sentenced to a conditional discharge and ordered to pay restitution in the amount of $80. A week after he pleaded guilty, defendant again appeared in City Court. Although the transcript of this proceeding is not part of the record in this case, City Court apparently issued an order of protection directing defendant to stay away from a particular person, referred to for our purposes as Gary M. The order of protection, which is included in the record, is predicated on CPL 530.13, the statute authorizing the issuance of orders of protection in favor of victims and witnesses in criminal actions. The order does not indicate whether Gary M. is a witness or victim with any connection to the bad check charge. Compliance with the order was added as a requirement underlying the conditional discharge. Defendant signed the order of protection, acknowledging that he was present at the time it was issued and knew its contents.
One month later, police officers executed a search warrant at Gary M.'s residence and discovered defendant there in violation of the order of protection. Defendant was arrested and charged by misdemeanor information with criminal contempt in the second degree. The information was signed by three police officers who averred that they personally observed defendant in the residence and that his presence was "in violation of an Order of Protection that was issued by North Tonawanda City Court . . . on the 18th day of May, 2000 prohibiting the defendant from being at that residence." A copy of the order of protection was attached to the information.
When defendant and his attorney appeared in City Court on the criminal contempt charge on June 29, 2000, defense counsel questioned whether it had been appropriate to issue the order of protection incident to a bad check prosecution, although he did not argue that the protected party was neither a victim nor a witness to the bad check incident. The court responded that it had determined the order was necessary based on an indicated report of abuse from the Department of Social Services and information from concerned citizens that defendant was abusing Gary M. The matter was adjourned to provide the defense an opportunity to file motions.
Two weeks later, with his attorney present, defendant pleaded guilty to attempted criminal contempt in the second degree. During the plea colloquy, City Court stated that it was continuing the order of protection. There was no objection by the defense. At sentencing, the court advised defendant that a permanent order of protection would be issued in favor of Gary M. Again, defendant raised no objection. On appeal, defendant argued for the first time that the order of protection underlying the criminal contempt charge was invalid under CPL 530.13 because Gary M. was not a victim or witness relating to the bad check charge. County Court questioned whether the issue was preserved for review but found that, even if it were deemed sufficiently preserved, defendant had forfeited the claim by pleading guilty. A Judge of this Court granted defendant leave to appeal.
CPL 530.13(4) authorizes a court to issue a permanent order of protection in favor of a victim or witness in a criminal action. In People v Nieves (2 NY3d 310, 316 [2004]), we noted that the "primary intent of the statute is to ensure that victims and `witnesses who have the courage and civic responsibility to cooperate with law enforcement officials are afforded the maximum protection possible.'" A court cannot rely on CPL 530.13(4) to issue an order of protection for a party unrelated to the underlying criminal action.
In Nieves, this Court held that a permanent order of protection issued at the conclusion of a criminal action is appealable as part of the judgment of conviction. We also held that a challenge to the scope or duration of such an order must be preserved by objection in the issuing court. Here, defendant did not appeal from the disorderly conduct conviction and apparently did not object to the order of protection when it was originally issued. Rather, defendant violated the order, ultimately pleading guilty to attempted criminal contempt.
Thus, the threshold question in this case is whether defendant's challenge to the validity of the order of protection is reviewable despite his guilty plea to attempted criminal contempt. "A plea of guilty, as we have repeatedly observed, generally marks the end of a criminal case, not a gateway to further litigation" (People v Hansen, 95 NY2d 227, 230 [2000]). In Hansen, we held that by pleading guilty, defendant had forfeited his challenge to the prosecutor's submission of hearsay evidence before the grand jury. We reasoned that where a defendant pleads guilty, the "conviction rests directly on the sufficiency of [the] plea, not on the legal or constitutional sufficiency of any proceedings which might have led to [a] conviction after trial" (id., quoting People v Di Raffaele, 55 NY2d 234, 240 [1982]). Thus, "[a] guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings" (People v Fernandez, 67 NY2d 686, 688 [1986]). We have, however, recognized exceptions to the forfeiture rule. "The limited issues surviving a guilty plea in the main relate either to jurisdictional matters (such as an insufficient accusatory instrument) or to rights of a constitutional dimension that go to the very heart of the process (such as the constitutional speedy trial right, the protection against double jeopardy or a defendant's competency to stand trial)" (People v Hansen, 95 NY2d at 230).
Defendant acknowledges that a guilty plea forfeits most appellate claims but argues that the present claim is reviewable despite the guilty plea because it involves the jurisdictional predicate underlying the validity of the accusatory instrument. He reasons that the order of protection was "void ab initio" because, he claims, Gary M. was neither a victim nor a witness. He argues that this asserted defect in the order rendered the later prosecution for criminal contempt jurisdictionally barred.
The People do not dispute that a prosecution for criminal contempt in the second degree requires proof that defendant intentionally disobeyed or resisted "the lawful process or other mandate of a court" (Penal Law § 215.50 [3]). As such, had defendant declined the plea offer, the People would have had the burden of establishing that the order of protection was valid either in response to a pretrial motion to dismiss or at trial. However, because defendant pleaded guilty without creating a record on the issue, the People note that in order to determine Gary M.'s status in the prior proceeding, this Court would have to conduct a collateral review of the prior proceeding based on documents and transcripts outside the record in this case. The People argue that defendant forfeited his right to challenge the validity of the order of protection by pleading guilty and, even if that order were invalid, this would not rise to the level of a jurisdictional defect.
While the record is less than clear as to the circumstances giving rise to issuance of the order of protection,1 it raises a serious concern that Gary M. was not involved in the earlier bad check prosecution. Needless to say, we cannot condone the misuse of CPL 530.13 to issue an order of protection in favor of a party unrelated to a pending prosecution. If there was reasonable cause to believe that defendant had committed a crime against Gary M., the appropriate procedure would be for the prosecutor to commence a separate criminal action and seek an order of protection in that proceeding protecting Gary M. as a victim, not for the court to short circuit that process by applying CPL 530.13 in a manner clearly not intended by the Legislature.
That being said, however, in this case we have no occasion to further address the validity of the underlying order of protection because defendant's claim that City Court violated CPL 530.13 does not implicate the jurisdiction of the courts and therefore did not survive his guilty plea. To the extent defendant argues that the allegations in the accusatory instrument relating to the order of protection were jurisdictionally insufficient, the argument survives his guilty plea but is without merit because the information and supporting documents adequately pleaded that defendant violated a court order.
Defendant's CPL 530.13 argument is not of constitutional dimension but rests on the allegation that City Court erred when it issued the...
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