Manhattan Criminal Court at 100 Centre St.
Manhattan Criminal Court at 100 Centre St. (NYLJ/Rick Kopstein)

Though a recent ruling from the state’s high court deemed a harassment statute unconstitutionally vague, a defendant in a separate case could not convince a judge to apply the holding retroactively as a way to trim the charges against him.

In August 2011, Larkin Ellis pleaded guilty to second-degree aggravated harassment, pursuant to Penal Law §240.30(1)(a), and was required to abide by a five-year order of protection directing him to stay away from his mother-in-law.

This May, the Court of Appeals deemed Penal Law §240.30(1)(a) in its form at the time as overbroad and struck it down in People v. Golb, 72 (NYLJ, May 14).

Two months after the court’s decision, Manhattan prosecutors charged Ellis with a number of offenses after he allegedly hit his mother-in-law in the head and threatened to kill her.

The charges included second-degree criminal contempt for violating the order of protection put in place years earlier.

Pointing to Golb, Ellis said the contempt charge was defective.

But Manhattan Criminal Court Judge Steven Statsinger (See Profile) refused to toss the charge, saying there was no state precedent for Golb‘s retroactive application.

Noting he was not considering a motion to set aside the underlying conviction, Statsinger said in People v. Ellis, 2014NY054163 “it is nevertheless abundantly clear that [Ellis'] conviction under that section did not simply evaporate of its own accord the moment that Golb was decided. That conviction was valid when it was entered and remains valid today.”

Statsinger noted the Court of Appeals in a 1989 case, People v. Dietze, 75 NY2d 47, struck down a statute that was similar to the one at issue in Golb. But the judge said there were no published decisions voiding orders of protection in connection to convictions secured before the Dietze case.

He said that “strongly suggests” protection orders such as the one at issue remained valid, “or at least that Golb did not automatically invalidate them.”

Statsinger noted protection orders are meant to offer named persons physical protection as well as “some sense of security or repose.”

“The purposes would be seriously frustrated if a person who is bound by an order of protection and who decided to test the order’s validity by deliberately violating the order was then able to obtain a dismissal of the criminal contempt case by claiming that the order was invalid,” Statsinger wrote, adding that granting Ellis’ dismissal bid would “encourage precisely this behavior.”

Instead, anyone who wanted to vacate a protection order’s validity “should avail himself of a lawful court process to challenge its validity before deliberately violating it,” he wrote.

In the wake of the Golb ruling, Gov. Andrew Cuomo signed a law that amended the language of the second-degree aggravated harassment statute (NYLJ, July 24).

Anna Ulrich, a staff attorney in the Manhattan office of the Legal Aid Society’s Criminal Defense Practice, represented Ellis and pledged to appeal.

The defense position, she said in a statement, was not that the statute became void when the Golb decision was released. Instead, she said, the contention was that the state “never possessed the power to convict individuals under a statute that captured lawful, constitutionally-protected speech within its ambit.”

Ulrich said the Criminal Court never had the authority to impose a protection order rooted in a “constitutionally-repugnant statute.”

“The order, like the conviction, was constitutionally invalid when it was issued, and it was invalid at the time Mr. Ellis was alleged to have violated it,” she said.

Assistant District Attorney Megan McDermott appeared for the prosecution. Joan Vollero, a spokeswoman for the Manhattan District Attorney’s office, declined comment.