Published on:

CPL 530.12(5)

A Kings Criminal Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered April 22, 2009, in Kings County, convicting him of burglary in the second degree, criminal contempt in the first degree, and criminal contempt in the second degree, upon his plea of guilty, and imposing sentence. Upon the appeal from the judgment, the duration of a final order of protection issued at the time of sentencing will be reviewed as a matter of discretion in the interest of justice.

A Kings Domestic Violence Lawyer said that, 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, the court is 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.

A New York Order of Protection Lawyer said that, 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 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.

A New York Domestic Violence Lawyer said that, 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 post-release supervision for that offense.

A New York Order of Protection Lawyer said that, 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 post-release 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.

A New York Criminal Defense Lawyer said that, 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.

A New York Domestic Violence Lawyer said that, 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.

The issue in this case is whether the duration on the court’s final order of protection is valid.

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 pleads 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.

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. While a narrow exception to the preservation rule exists where a court exceeds its powers by imposing an illegal sentence, the Court of Appeals has held that this exception does not apply to challenges to the duration or scope of an order of protection because an order of protection is not part of a defendant’s sentence. To the contrary, “an order of protection issued incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims and witnesses both prior to and after conviction”.

Nevertheless, the intermediate appellate courts of this State are vested with the discretion to review unpreserved claims in the interest of justice. We exercise that discretion here in order to clarify whether retroactive application of the amended version of CPL 530.12(5) to crimes committed prior to its effective date is permissible.

The statutory provision at issue on this appeal, CPL 530.12(5), was amended in 2006 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. As part of the same legislative package, CPL 530.13(4), which vests criminal courts with the authority to issue orders of protection for victims and witnesses who are not involved in family offenses, was similarly amended to increase the duration of orders of protection issued upon a felony conviction from five years to eight years. The Assembly bill to amend these statutes was supported by several governmental agencies, including the Division of Probation and Correctional Alternatives, the Crime Victims Board, the Office for the Prevention of Domestic Violence, and the Division of Parole, and legislative history reflects an unequivocal intent to provide greater protection to crime victims. In a memorandum in support of the bill, the Office for the Prevention of Domestic Violence observed that “an order of protection is critical for the safety of domestic violence victims. In the best of circumstances, it will serve to deter a perpetrator from abusing in the future. If this deterrence fails, an order of protection gives the victim, law enforcement and the court the necessary legal platform from which to take further action to hold an abuser accountable.

As amended, CPL 530.12(5) now provides that the duration of an order of protection issued “upon conviction of any crime between spouses, parent and child, or between members of the same family or household” which is a felony “shall not exceed the greater of: (i) eight years from the date of such conviction, or (ii) eight years from the date of the expiration of the maximum term of an indeterminate or the term of a determinate sentence of imprisonment actually imposed.” The amendment took effect on August 25, 2006.

In the case before us, the Supreme Court set the expiration date of the final order of protection it issued in favor of the victim in accordance with the amended version of CPL 530.12(5), which was in effect on the date of sentencing, but not on the date the defendant committed the crimes to which he pleaded guilty. The Appellate Division, Fourth Department, has already held that it is proper for a sentencing court to set an expiration date for a final order of protection in accordance with the version of the statute which is in effect when the judgment of conviction is entered. The defendant urges us to disregard this authority because the brief decisions do not explain their rationale. However, our independent analysis of this issue leads us to agree that it is entirely proper for a sentencing court to issue a final order of protection in accordance with the version of the statute in effect at sentencing, rather than the version in effect when the subject offenses are committed.

Finally, we turn to the defendant’s contention that our decision is controlling and compels us to hold that the Supreme Court was not authorized to issue a final order of protection with a duration exceeding the maximum permitted by statute at the time he committed his offenses.

Nevertheless, regardless of whether the retroactive imposition of the fees and surcharges mandated by Penal Law § 60.65 violates the Ex Post Facto Clause, the retroactive application of the 2006 amendment extending the maximum-permissible duration of orders of protection issued pursuant to CPL 530.12(5) clearly does not do so. The Legislature acted to extend the maximum length of orders of protection issued in favor of victims of family felony offenses in order to give these victims a measure of increased protection from their abusers, rather than to punish the abusers. Since there is no constitutional bar to the retroactive application of the 2006 amendment to CPL 530.12(5), the legislative intent to provide greater protection to family felony offense victims must be honored. Accordingly, we reject the defendant’s contention that Diggs is controlling, and conclude that the Supreme Court had the authority to issue a final order of protection with a maximum duration of eight years, in accordance with the version of CPL 530.12(5) in effect on the date of sentencing. Therefore, upon the appeal from the judgment, the request to vacate the final order of protection is denied.

Accordingly, the court held that the appeal from the judgment, the request to vacate the final order of protection is denied.

If you are a victim of domestic violence, seek the legal advice of a New York Domestic Violence Attorney and/or New York Order of Protection Attorney in order to prevent further harm on yourself. Call us at Stephen Bilkis and Associates.

Contact Information