In People v. Ellis, 45 Misc 3d 716 (Crim Ct NY County 2014) (Statsinger, J.), this Court held that People v. Golb, 23 NY3d 455, 15 N.E.3d 805, 991 N.Y.S.2d 792 (2014), which found Penal Law § 240.30(1)(a) to be unconstitutional on its face, did not automatically void an order of protection entered in connection with a final pre-Golb conviction. Rejecting this "back-door" collateral challenge to the underlying conviction, the Court denied the defendant's motion to dismiss a criminal contempt case.

This case squarely presents the question left open by Ellis: On a motion pursuant to CPL § 440.10, does Golb apply retroactively? For the reasons that follow, the Court again cannot reach that question. CPL § 440.10 relief is unavailable to this defendant, since he unjustifiably failed to raise the issue of the constitutionality of § 240.30(1)(a) on direct appeal. See CPL § 440.10(2)(c). Accordingly, defendant's motion to vacate is DENIED.

According to the accusatory instrument, on June 17, 2010, defendant sent the complainant, his wife, a threatening text message.

On June 18, 2010, defendant was arraigned on a Misdemeanor Complaint charging him with one count each of Aggravated Harassment in the Second Degree, in violation of Penal Law § 240.30(1) (Count One), and Harassment in the Second Degree, in violation of Penal Law § 240.26(1) (Count Two). On June 29, 2100 the People filed a Supporting Deposition from the complainant.

On February 8, 2011, defendant pled guilty to violating Penal Law § 240.3(1)(a), and the Court sentenced him to a domestic violence accountability program and a full and final order of protection in favor of his wife. Defendant did not appeal.

Over the next fourteen months, defendant was only sporadically compliant with the program, and frequently failed to appear in court on his scheduled compliance dates. He ultimately completed seven of nine sessions at Project Sharp, but was terminated from the program on April 25, 2012, due to his frequent tardiness. On April 27, 2012, his last scheduled compliance date, defendant failed to appear and the court issued a bench warrant.

On August 13, 2014, defendant was arrested on an unrelated case, which also served as an involuntary return on the bench warrant. At a violation of conditional discharge ("VOCD") hearing on August 17, 2014, defense counsel attempted challenge the validity of the underlying conviction, but Court would not permit that challenge to go forward.^[FN1]

After the court denied defense counsel's oral motion to vacate, defense counsel immediately filed a written motion to vacate pursuant CPL § 440.10(1)(h). The matter has been sub judice since then.

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.

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.

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.

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,

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.^[FN2] 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.

Nor was there a legal impediment to appeal on this ground. Defendant was convicted in February of 2011. 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 2011, two federal [*4]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).

Finally, there was no controlling New York State precedent to the contrary. People v. Chaves, 3 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. The Court also notes that in People v. Little, 4 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.

Accordingly, since defendant unjustifiably failed to appeal the underlying 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.

For the foregoing reasons, defendant's motion to vacate his conviction pursuant to CPL 440.10(1)(h) is denied.

Judge of the Criminal Court