| People v Stedge |
| 2016 NY Slip Op 00398 [135 AD3d 1174] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDavid E. Stedge, Appellant. |
Margaret McCarthy, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered December 2, 2013, convicting defendant upon his plea of guilty of the crimeof failure to register as a sex offender.
In 2008, defendant pleaded guilty to the crime of forcible touching and was requiredto register under the Sex Offender Registration Act (see Correction Law art 6-C).A February 2013 indictment charged defendant with the crime of failure to register as asex offender (see Correction Law § 168-t), arising from allegationsthat he moved from his registered address in Chemung County without reporting hischange of address to the Division of Criminal Justice Services. Defendant moved todismiss the indictment on the ground that the County Court of Chemung County lackedgeographical jurisdiction over him since he moved to another county; County Courtdenied the motion. Defendant then filed a CPL article 440 motion seeking to vacate theunderlying forcible touching conviction arguing, among other things, that he was notprovided with the effective assistance of counsel by his former attorney, a ChemungCounty Public Defender. Subsequently, defendant requested new representation,contending that the motion created an actual conflict of interest in the instantmatter.[FN1] A fewdays later, defendant [*2]withdrew his request for newcounsel. Defendant ultimately pleaded guilty to failure to register as a sex offender andwas subsequently sentenced to nine months in jail. Defendant appeals, arguing primarilythat County Court erred in denying his motion to dismiss.
We affirm. "A person may be convicted in . . . criminal court of aparticular county . . . when . . . [e]ven though none of theconduct constituting such offense may have occurred within such county[,]. . . [s]uch conduct had, or was likely to have, a particular effect upon suchcounty" (CPL 20.40 [2] [c]; see Matter of Steingut v Gold, 42 NY2d 311, 317[1977]; see also People v Fea, 47 NY2d 70, 75-76 [1979]). "Particular effect ofan offense" is defined as "[w]hen conduct constituting an offense produces consequenceswhich, though not necessarily amounting to a result or element of such offense, have amaterially harmful impact upon the governmental processes or community welfare of aparticular jurisdiction" (CPL 20.10 [4]). CPL 20.40 also provides a criminal court withgeographical jurisdiction when "[t]he offense committed was one of omission to performa duty imposed by law, which duty either was required to be or could properly have beenperformed in such county. In such case, it is immaterial whether such person was withinor outside such county at the time of the omission" (CPL 20.40 [3]).
Initially, defendant's guilty plea does not waive a geographical jurisdiction challenge(see People v Kellerman, 102 AD2d 629, 631 [1984]). Turning to the merits, wefind that Chemung County had a statutory basis for the prosecution of defendant's failureto register as a sex offender pursuant to CPL 20.40 (2) (c). As the county with the lastknown address for defendant, Chemung County had a continuing interest and duty toprotect its residents by enforcing the terms and requirements of the Sex OffenderRegistration Act and, as argued by the People, defendant's failure to register his newaddress hindered Chemung County law enforcement's efforts to protect its community.Thus, we find that defendant's failure to report his change of address had, or was likely tohave, a materially harmful impact on the Chemung County community, as well asChemung County's governmental processes (see CPL 20.10 [4]; 20.40 [2] [c];see generally People v Patterson, 185 Misc 2d 519, 520-521 [Crim Ct, BronxCounty 2000]; People v Olivera, 184 Misc 2d 327, 328-332 [Crim Ct, BronxCounty 2000]) and, as such, County Court did not err in denying defendant's motion todismiss the indictment.[FN2]
We also find that defendant's representation here was conflict free. Contrary todefendant's contention, the filing of a CPL article 440 motion in a prior action seekingvacatur upon allegations of ineffective assistance[FN3] did not give rise to an actual conflict ofinterest in the instant action (seePeople v Solomon, 20 NY3d 91, 98 [2012]; People v Perez, 70 NY2d773, 774 [1987]; People vLynch, 104 AD3d 1062, 1062-1063 [2013]; People v Smith, 271 AD2d752, 753 [2000]). Further, under the particular circumstances here—namely,defendant's withdrawal of his request for new counsel—additional inquiry byCounty Court was not required to protect the right of defendant to effective assistance ofcounsel (compare People v McDonald, 68 NY2d 1, 8-9 [1986]).
Defendant's remaining contentions have been considered and have been found to be[*3]without merit.
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Although once againrepresented by the Chemung County Public Defender's office, defendant was notrepresented by the same Public Defender in the instant matter.
Footnote 2:Alternatively, contrary todefendant's contention, based on the plain language of the statute, geographicaljurisdiction over defendant may have been obtained pursuant to CPL 20.40 (3).
Footnote 3:In support of his CPLarticle 440 motion, defendant alleged that he pleaded guilty to forcible touching becausehis previous attorney "would not even prepare or discuss a defense."