People v. Brabant

215 N.Y.S.3d 567

229 A.D.3d 892

The PEOPLE of the State of New York, Respondent,

v.Jacob R. BRABANT, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 28, 2024

Decided and Entered: July 11, 2024

Rural Law Center of New York, Inc., Plattsburgh (Lora J. Tryon of counsel), for appellant, and appellant pro se.

Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Fisher and Powers, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeals (1) from a judgment of the County Court of St. Lawrence County (Jerome J. Richards, J.), rendered December 16, 2019, convicting defendant upon his plea of guilty of the crime of aggravated family offense (three counts), and (2) by permission, from an order of said court (Gregory P. Storie, J.), entered February 11, 2021, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged by indictment with four counts of aggravated family offense and four counts of criminal contempt in the second degree stemming from his conduct on two days in December 2018, while incarcerated, in intentionally disobeying a no-contact order of protection against a member of his family or household by making phone calls to her (see Penal Law § 240.75[1], [2]). At the arraignment, County Court (Richards, J.) reportedly signed a temporary no-contact order of protection in favor of the victim.¹ On July 29, 2019, defendant accepted a plea offer pursuant to which he would plead guilty to two counts of aggravated family offense (counts 1 and 5) in exchange for a promised prison term, as a second felony offender, of 2 to 4 years on each count, to be served consecutively, and executed a waiver of appeal. The guilty plea would be in satisfaction of numerous other charges. When defendant requested to be released to probation supervision pending sentencing, the court refashioned the plea agreement, which defendant accepted, to provide that he would also enter a guilty plea to a third count of aggravated family offense (count 3). If he were compliant with the release conditions, the court would vacate that plea; however, if he violated the conditions, the plea on count 3 would not be vacated and the court could sentence him upon that conviction to an additional term of 2 to 4 years, to be served consecutively to the other prison terms. Defendant then pleaded guilty to the three counts of aggravated family offense and was released on probation supervision.

On August 5, 2019, defendant was returned to court on a bench warrant. County Court advised that it had been informed that defendant had injured the victim, and then read into the record a notarized letter from the victim’s mother making representations that the victim was residing with defendant and that defendant had assaulted her, for which she received medical attention at a hospital emergency room. The court also indicated that attached to the letter were copies of text and email messages ostensibly between the victim and her mother. After a brief inquiry, the court concluded that defendant had violated the conditions of the order of protection and, correspondingly, the conditions of his release and plea agreement. The court denied defense counsel’s request for a hearing to cross-examine the victim’s mother regarding her allegations, which defendant disputed.

Represented by a third defense counsel — his prior two having been relieved – defendant moved to withdraw his guilty plea as not knowing, voluntary or intelligent, and County Court denied the motion. The court sentenced defendant, as a sec- ond felony offender, to three consecutive prison terms of 2 to 4 years and issued a no-contact order of protection in favor of the victim.

Defendant thereafter moved, pro se, to vacate the judgment of conviction pursuant to CPL article 440 based upon, among other grounds, ineffective assistance of counsel. County Court (Storie, J.) denied the motion. Defendant appeals from the judgment of conviction and, by permission, from the denial of his motion to vacate.

[1, 2] Initially, defendant argues that his plea was not knowing, voluntary or intelligent, a claim that survives his unchallenged waiver of appeal (see People v. Goodwalt, 205 A.D.3d 1070, 1072, 167 N.Y.S.3d 250 [3d Dept. 2022], lv denied 38 N.Y.3d 1071, 171 N.Y.S.3d 452, 191 N.E.3d 404 [2022]).² Specifically, defendant contends that he negated an essential element of the crime of aggravated family offense during the plea allocution by denying that he and the victim were "members of the same family or household" as required by Penal Law § 240.75, thereby triggering the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]; see also People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied 574 U.S. 840, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014]).

"A person is guilty of aggravated family offense when he or she commits one of the statutorily enumerated specified offenses set forth in Penal Law § 240.75(2) against a person in his or her same family or household and, within the preceding five years, has also been convicted of at least one other specified offense against a person in his or her family or household" (People v. Ramsoondar, 206 A.D.3d 1157, 1158, 168 N.Y.S.3d 755 [3d Dept. 2022] [internal quotation marks and citations omitted]; see People v. Saenger, 39 N.Y.3d 433, 437, 190 N.Y.S.3d 297, 211 N.E.3d 686 [2023]).³ The specified offense charged in all three counts was criminal contempt in the second degree, an offense enumerated in Penal Law § 240.75(2). During the plea allocution to count 1, defendant initially equivocated regarding the nature of his relationship with the victim, but ultimately acknowledged that she was his "girlfriend, or [his] fiancée, I guess. Girlfriend" and that "sometimes she spent the night at [his] house." When defendant explained that the victim had her own home, County Court (Richards, J.) stated that it did not matter whether defendant and the victim maintained separate residences, explaining that "[t]he question is were you at some point in time cohabitating together in the same residence." Defendant responded in the affirmative. Thereafter, when he entered a guilty plea to count 5, defendant admitted that the victim was a member of his family or household. Under CPL 530.11(1)(e), "members of the same family or household" include "persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time" (see People v. Shortell, 146 A.D.3d 1076, 1077, 45 N.Y.S.3d 650 [3d Dept. 2017]).⁴ The question here is whether defendant and the victim were or had been involved in an "intimate relationship" and not, as the court instructed, whether they had co-habited in the same residence. Even so, we find that defendant clearly acknowledged that he and the victim were involved in an "intimate relationship" even though they maintained separate residences.

[3] Defendant also challenges the validity of his plea on the ground that count 5 alleged that he violated the order of protection by telephoning the victim "on or about December 12, 2019 at 10:20 [p.m.]," which he contends was factually impossible since the jail was on lockdown at that time and he could not make phone calls after 10:00 p.m. When defendant raised this issue during the plea allocution, County Court suggested that the count be amended as to time, which is not an element of the crime (see CPL 200.70[2]). After the parties conferred off the record, defendant pleaded guilty to count 5 without amendment. Having proceeded to enter a guilty plea to this unamended count without objection, aware of the potential time discrepancy, defendant waived any challenge to the non-elemental factual allegations in count 5 (see People v. Duboy, 150 A.D.2d 882, 884, 540 N.Y.S.2d 905 [3d Dept. 1989], lv denied 74 N.Y.2d 846, 546 N.Y.S.2d 1011, 546 N.E.2d 194 [1989]; see also People v. Dickerson, 198 A.D.3d 1190, 1193, 156 N.Y.S.3d 526 [3d Dept. 2021]).⁵ Defendant’s further challenges to the factual sufficiency of the plea allocution or the factual allegations in the indictment were not raised in his motion to withdraw his guilty plea and are thus unpreserved for our review; moreover, with respect to counts 1 and 5, the challenges were forfeited by his unchallenged waiver of appeal (see People v. Nolan, 224 A.D.3d 996, 997, 202 N.Y.S.3d 832 [8d Dept. 2024]; People v. Dickerson, 198 A.D.3d at 1198, 156 N.Y.S.3d 526).

[4–6] Defendant further contends that the indictment was jurisdictionally defective for falling to name the victim of the crime, a claim that is not waived by a guilty plea and can be raised for the first time on appeal (see People v. Guerrero, 28 N.Y.3d 110, 116, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2016]). "An indictment is rendered jurisdictionally defective only if it does not charge the defendant with the commission of a particular crime, by, for example, failing to allege every material element of the crime charged, or alleging acts that do not equal a crime at all" (id. [internal quotation marks and citations omitted]; see People v. Saenger, 39 N.Y.3d at 438, 190 N.Y.S.3d 297, 211 N.E.3d 686). "[T]here is no per se rule that requires an indictment to name the victim for each count alleged[. Instead,] the indictment and bill of particulars must provide sufficient alternative information identifying the charged crime to satisfy statutory and constitutional requirements" (People v. Sanchez, 84 N.Y.2d 440, 446, 618 N.Y.S.2d 887, 643 N.E.2d 509 [1994]; see People v. Stanley, 23 A.D.3d 683, 684, 803 N.Y.S.2d 274 [3d Dept. 2005], lv denied 6 N.Y.3d 818, 812 N.Y.S.2d 458, 845 N.E.2d 1289 [2006]). The identity of the victim, i.e., the member of defendant’s family or...