87 A.D.3d 299
N.Y. App. Div.2011Background
- Legislation in July 2006 amended CPL 530.12(5) to raise the final order of protection for felony family offenses from five to eight years to enhance victim protection.
- Defendant assaulted, broke into victim’s dwelling, and stalked her between July and December 2004, violating temporary orders of protection.
- Indictments charged multiple offenses; consolidated in October 2005; plea negotiated November 16, 2005.
- Defendant pled guilty to burglary in the second degree and both counts of criminal contempt; court warned about potential sentence if treatment program was not completed.
- Sentencing on April 22, 2009 produced determinate prison terms and a five-year postrelease supervision; judge issued a final order of protection lasting 13 years.
- On appeal, defendant challenged eight-year duration of the final order as exceeding the then-law maximum for crimes committed before the 2006 amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying the 2006 eight-year maximum retroactively violates the Ex Post Facto Clause. | People contend retroactive application serves nonpunitive protection. | Diggs controls; retroactive application punishes for pre-amendment acts. | No Ex Post Facto violation; purpose nonpunitive, protective. |
| Whether a sentencing court may issue a final order of protection under the amended statute when offenses occurred before the amendment. | Court may apply amended statute at sentencing to protect victims. | Should have used the pre-amendment maximum. | Proper to issue under amended statute at sentencing. |
| Whether defendant’s waiver of the right to appeal was knowing, voluntary, and intelligent given the plea colloquy. | Waiver acknowledged; valid. | Waiver was misleading and not fully informed. | Waiver unenforceable; preservation for appeal remains distinct. |
Key Cases Cited
- Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997) (retroactive nonpunitive goals permit Ex Post Facto compliance)
- People v. Nieves, 2 NY3d 310 (N.Y. Ct. App. 2004) (orders of protection nonpunitive; not part of sentence)
- People v. Guerrero, 12 NY3d 45 (N.Y. 2009) (mandatory surcharges not part of sentence; nonpunitive in nature; Guerrero informs retroactivity analysis)
- People v. Diggs, 73 AD3d 1210 (4th Dep’t 2010) (retroactive fees; later limited by Guerrero analysis)
- Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (ex post facto considerations for nonpunitive penalties)