| People v Charlotten |
| 2008 NY Slip Op 04006 [51 AD3d 1063] |
| May 1, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v StevenCharlotten, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Peters, J.P. Appeals (1) from a judgment of the County Court of Albany County (Herrick, J.),rendered October 12, 2005, convicting defendant upon his plea of guilty of the crime of criminalcontempt in the first degree, and (2) by permission, from two orders of said court, entered June29, 2006 and October 18, 2006, which denied defendant's motions pursuant to CPL 440.10 tovacate the judgment of conviction, without a hearing.
The facts underlying this case can be found in our prior decision (44 AD3d 1097 [2007]),where we held these appeals in abeyance pending remittal of the matter to County Court for ahearing on defendant's CPL article 440 motions with respect to his claim of ineffective assistanceof counsel. Upon remittal, the hearing was held and, upon our review, the record supports afinding that counsel deprived defendant of meaningful representation by allowing him to pleadguilty to a violation of a court order which was a nullity.
It is by now well settled that the gauge by which to measure counsel's effectiveness iswhether the representation provided was meaningful (see People v Benevento, 91 NY2d708, 712 [1998]; People v Turner,37 AD3d 874, 876 [2007], lv denied 8 NY3d 991 [2007]). Here, as the temporaryorder of protection which defendant admitted to violating was a nullity, he pleaded [*2]guilty to conduct which did not constitute a crime (see People vBleau, 276 AD2d 131, 133-134 [2001]). Counsel's failure to recognize the invalidity of thecourt order thus amounted to an error on a " 'clear-cut and completely dispositive' issue" (People v Smith, 30 AD3d 693,694 [2006], quoting People vTurner, 5 NY3d 476, 481 [2005]) and, inasmuch as defendant demonstrated at thehearing that he would not have pleaded guilty but for this error by counsel (see People v McDonald, 1 NY3d109, 115 [2003]; Hill v Lockhart, 474 US 52, 59 [1985]), we find that defendant didnot receive the effective assistance of counsel. Furthermore, since the temporary order ofprotection became null and void on March 15, 2005, the subsequently issued superior courtinformation charging him with a violation thereof must be dismissed (see People v Bleau,276 AD2d at 133).
Spain, Lahtinen and Kane, JJ., concur. Ordered that the judgment and orders are reversed, onthe law, motions to vacate granted and superior court information dismissed.