People v. Stedge , 24 N.Y.S.3d 775 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 21, 2016 106588
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
DAVID E. STEDGE SR.,
Appellant.
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Calendar Date: November 19, 2015
Before: Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.
__________
Margaret McCarthy, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-
Ulacco of counsel), for respondent.
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Clark, J.
Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered December 2, 2013, convicting
defendant upon his plea of guilty of the crime of failure to
register as a sex offender.
In 2008, defendant pleaded guilty to the crime of forcible
touching and was required to register under the Sex Offender
Registration Act (see Correction Law art 6-C). A February 2013
indictment charged defendant with the crime of failure to
register as a sex offender (see Correction Law § 168-t), arising
from allegations that he moved from his registered address in
Chemung County without reporting his change of address to the
Division of Criminal Justice Services. Defendant moved to
dismiss the indictment on the ground that the County Court of
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Chemung County lacked geographical jurisdiction over him since he
moved to another county; County Court denied the motion.
Defendant then filed a CPL article 440 motion seeking to vacate
the underlying forcible touching conviction arguing, among other
things, that he was not provided with the effective assistance of
counsel by his former attorney, a Chemung County Public Defender.
Subsequently, defendant requested new representation, contending
that the motion created an actual conflict of interest in the
instant matter.1 A few days later, defendant withdrew his
request for new counsel. Defendant ultimately pleaded guilty to
failure to register as a sex offender and was subsequently
sentenced to nine months in jail. Defendant appeals, arguing
primarily that County Court erred in denying his motion to
dismiss.
We affirm. "A person may be convicted in . . . criminal
court of a particular county . . . when . . . [e]ven though none
of the conduct constituting such offense may have occurred within
such county[,] . . . [s]uch conduct had, or was likely to have, a
particular effect upon such county" (CPL 20.40 [2] [c]; see
Matter of Steingut v Gold, 42 NY2d 311, 317 [1977]; see also
People v Fea, 47 NY2d 70, 75-76 [1979]). "Particular effect of
an offense" is defined as "[w]hen conduct constituting an offense
produces consequences which, though not necessarily amounting to
a result or element of such offense, have a materially harmful
impact upon the governmental processes or community welfare of a
particular jurisdiction" (CPL 20.10 [4]). CPL 20.40 also
provides a criminal court with geographical jurisdiction when
"[t]he offense committed was one of omission to perform a duty
imposed by law, which duty either was required to be or could
properly have been performed in such county. In such case, it is
immaterial whether such person was within or outside such county
at the time of the omission" (CPL 20.40 [3]).
Initially, defendant's guilty plea does not waive a
geographical jurisdiction challenge (see People v Kellerman, 102
1
Although once again represented by the Chemung County
Public Defender's office, defendant was not represented by the
same Public Defender in the instant matter.
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AD2d 629, 631 [1984]). Turning to the merits, we find that
Chemung County had a statutory basis for the prosecution of
defendant's failure to register as a sex offender pursuant to CPL
20.40 (2) (c). As the county with the last known address for
defendant, Chemung County had a continuing interest and duty to
protect its residents by enforcing the terms and requirements of
the Sex Offender Registration Act and, as argued by the People,
defendant's failure to register his new address hindered Chemung
County law enforcement's efforts to protect its community. Thus,
we find that defendant's failure to report his change of address
had, or was likely to have, a materially harmful impact on the
Chemung County community, as well as Chemung County's
governmental processes (see CPL 20.10 [4]; 20.40 [2] [c]; see
generally People v Patterson, 185 Misc 2d 519, 520-521 [Crim Ct,
Bronx County 2000]; People v Olivera, 184 Misc 2d 327, 328-332
[Crim Ct, Bronx County 2000]) and, as such, County Court did not
err in denying defendant's motion to dismiss the indictment.2
We also find that defendant's representation here was
conflict free. Contrary to defendant's contention, the filing of
a CPL article 440 motion in a prior action seeking vacatur upon
allegations of ineffective assistance3 did not give rise to an
actual conflict of interest in the instant action (see People v
Solomon, 20 NY3d 91, 98 [2012]; People v Perez, 70 NY2d 773, 774
[1987]; People v Lynch, 104 AD3d 1062, 1062-1063 [2013]; People v
Smith, 271 AD2d 752, 753 [2000]). Further, under the particular
circumstances here – namely, defendant's withdrawal of his
request for new counsel – additional inquiry by County Court was
not required to protect the right of defendant to effective
assistance of counsel (compare People v McDonald, 68 NY2d 1, 8-9
[1986]).
2
Alternatively, contrary to defendant's contention, based
on the plain language of the statute, geographical jurisdiction
over defendant may have been obtained pursuant to CPL 20.40 (3).
3
In support of his CPL article 440 motion, defendant
alleged that he pleaded guilty to forcible touching because his
previous attorney "would not even prepare or discuss a defense."
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Defendant's remaining contentions have been considered and
have been found to be without merit.
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court