People v Ellis (Larkin)

[*1] People v Ellis (Larkin) 2019 NY Slip Op 51668(U) Decided on October 22, 2019 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 22, 2019
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Gonzalez, J.
570843/14

The People of the State of New York,

against

Larkin Ellis, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Steven M. Statsinger, J.), rendered August 25, 2014, convicting him, upon a plea of guilty, of criminal contempt in the second degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Steven M. Statsinger, J.), rendered August 25, 2014, affirmed.

By pleading guilty to the criminal contempt charge, defendant forfeited his present challenge to the validity of the August 1, 2011 order of protection underlying that charge (see People v Konieczny, 2 NY3d 569 [2004]). In any event, the challenge is unavailing. Although the order of protection was issued upon defendant's 2011 conviction of aggravated harassment, pursuant to a provision of the Penal Law that was subsequently declared unconstitutional by the Court of Appeals (see People v Golb, 23 NY3d 455, 467—468 [2014], cert denied __ US__, 135 S Ct 1009 [2015]), defendant's conviction was final before Golb was decided (see generally People v Scott, 126 AD3d 645, 646-647 [2015], lv denied 25 NY3d 1171 [2015]; see also People v Ward, 136 AD3d 504 [2016], lv denied 28 NY3d 938 [2016]). Furthermore, even if we were to assume, arguendo, that Golb should be given retroactive effect to cases on collateral review, defendant never made any post-Golb application to vacate that conviction pursuant to CPL 440.10.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: October 22, 2019