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DEFENDANT’S CONTEMPT CONVICTION FOR VIOLATING AN ORDER OF PROTECTION STANDS, DESPITE THE FACT THAT THE ORDER OF PROTECTION WAS BASED ON AN OFFENSE SINCE FOUND UNCONSTITUTIONAL (FIRST DEPT).

The First Department determined the order of protection based on a conviction for an offense which has been found unconstitutional was voidable, not void, and therefore remained in effect.

Defendant was properly convicted of first-degree criminal contempt under Penal Law § 215.51(b)(v) for violating an order of protection that had been issued upon his conviction of second-degree aggravated harassment under former Penal Law § 240.30(1)(a). The contempt conviction was valid even though the Court of Appeals declared that the aggravated harassment provision underlying the order of protection was unconstitutional in People v Golb (23 NY3d 455 [2014] … . Golb was decided after the order of protection was issued against defendant, but before he violated it. …

The Golb decision did not render defendant’s order of protection void on its face, but merely voidable.

Defendant’s underlying conviction was final before Golb was decided. The order of protection was indisputably valid at the time of its issuance. After Golb, there are no reported cases holding that convictions under former Penal Law § 240.30 (1)(a) are automatically vacated. Instead, where there was vacatur of a conviction or order of protection, it was in response to a request for relief either on appeal or in a posttrial motion … . …

Defendant did not challenge the order of protection by appealing the aggravated harassment conviction against him … . His subsequent CPL 440.10 motion to vacate the conviction and order of protection based on Golb was denied … . Defendant was therefore required to comply with the extant order and his violation constituted criminal contempt … . People v Brown, 2020 NY Slip Op 08011, First Dept 12-29-20

 

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