| People v Rapp |
| 2017 NY Slip Op 07006 [154 AD3d 1007] |
| October 5, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v John J.Rapp, Appellant. |
Brian M. Quinn, Albany, for appellant.
Jason M. Carusone, Acting District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Garry, J. Appeal, by permission, from an order of the County Court of Warren County (HallJr., J.), entered July 1, 2015, which denied defendant's motion pursuant to CPL 440.10 to vacatethe judgment revoking defendant's probation and imposing a sentence of imprisonment, withouta hearing.
In 2005, defendant pleaded guilty to driving while intoxicated as a felony and was placed oninterim probation and, in 2006, he was sentenced, as agreed, to five years of probation andrequired to continue with drug treatment court. In 2008, defendant was charged with aggravatedharassment in the second degree and stalking in the fourth degree and, as a result, a violation ofprobation petition was filed alleging that he had violated the condition requiring that he obey andnot violate any laws. Pursuant to a negotiated agreement, defendant thereafter admitted that heviolated the condition of probation by committing the crimes charged, waived his right to appealand was sentenced to the agreed-upon prison term of 1 to 3 years with release on parole if hesuccessfully completed a Willard Drug Treatment Program. The admission satisfied theunderlying harassment and stalking charges. Defendant did not appeal from that judgmentrevoking his probation and imposing a prison sentence. In 2015, defendant filed a motionpursuant to CPL 440.10 to vacate that judgment, claiming that he was denied the effectiveassistance of counsel in connection with his admission to violating the condition of probation.County Court denied the motion in a written decision and order, without a hearing. Defendantnow appeals from that order.
[*2] Defendant's motion tovacate was properly denied. Defendant contends that he was deprived of meaningfulrepresentation in that defense counsel failed to advise him that federal case law called into doubtthe constitutionality of Penal Law former § 240.30 (1) (a). Defendant further arguesthat the Court of Appeals ruled that this statutory provision was unconstitutionally vague andoverbroad in People v Golb (23NY3d 455, 468 [2014], cert denied 574 US &mdash, 135 S Ct 1009[2015]).[FN1]
We begin by noting the extensive period of time between defendant's admission of paroleviolation and the later court decision. With regard to defendant's 2008 admission to committingaggravated harassment in the second degree and thereby violating a condition of probation,defense counsel cannot be found to have provided ineffective representation based upon thefailure to predict or anticipate that the underlying statutory provision would be ruledunconstitutional six years later. That is, even if counsel advised defendant to make thoseadmissions, such advice did not, at the time, constitute an egregious error or a denial ofmeaningful representation so as to amount to ineffective representation under either the federal orstate constitutional standards (see Peoplev Honghirun, 29 NY3d 284, 289 [2017]). Further, and as County Court accuratelyconcluded, defendant is incorrect insofar as he asserts that the statutory provision had been ruledunconstitutional by federal courts. In Vives v City of New York (405 F3d 115 [2d Cir2005], reversing in part 305 F Supp 2d 289 [SD NY 2003]), the Second Circuit merelyreferenced the "purported unconstitutionality" of Penal Law former § 240.30 (1)(id. at 118). The Second Circuit noted that several courts had declined to find theprovision to be unconstitutional, and that state officials were entitled to rely on a presumptivelyvalid state statute (id. at 117-118). The court specifically stated in Vives that "wedo not reach the question of whether New York Penal Law [former] § 240.30 (1)survives constitutional scrutiny, but save that question for another day" (id. at 118).Likewise, the Second Circuit's earlier decision in Schlagler v Phillips (166 F3d 439, 443[2d Cir 1999]), on which defendant also relies, did not hold this statutory provision to beunconstitutional. Thus, contrary to defendant's contentions, even if defense counsel failed toadvise him at the time of his violation of probation admission of these and other similar federalcases, he was not thereby deprived of the effective assistance of counsel (see People vHonghirun, 29 NY3d at 289).[FN2]
Further, "in the context of a guilty plea, a defendant has been afforded meaningfulrepresentation when he or she receives an advantageous plea and nothing in the record castsdoubt on the apparent effectiveness of counsel" (People v Driscoll, 147 AD3d 1157, 1158 [2017] [internal quotationmarks and citations omitted], lv denied 29 NY3d 1078 [2017]). Here, a review of theproceedings demonstrates that counsel secured a favorable agreement that limited defendant'sprison time and also resolved the new charges, and that defendant indicated at the [*3]time that he was satisfied with counsel's representation. Given theforegoing, we find that County Court properly denied defendant's motion to vacate, without ahearing (see CPL 440.30 [4] [a]).
Peters, P.J., Rose, Aarons and Rumsey, JJ., concur. Ordered that the order is affirmed.
Footnote 1:The mens rea under Penal Lawformer § 240.30 (1) was an intent to "harass, annoy, threaten or alarm anotherperson," which the Court of Appeals concluded "criminalizes, in broad strokes, anycommunication that has the intent to annoy" (People v Golb, 23 NY3d at 467). Followingthat ruling, the Legislature amended this provision, limiting the mens rea to "intent to harassanother person" (Penal Law § 240.30 [1]).
Footnote 2:We also note that while theinterpretation of a federal constitutional question by a lower federal court may be persuasiveauthority, it is not binding on our state appellate courts (see People v Kin Kan, 78 NY2d54, 59-60 [1991]).