The People, Appellant,v.Jacob Milton, Respondent.BriefN.Y.March 20, 2013To be argued by JESSICA L. ZELLNER (TIME REQUESTED: 20 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, against JACOB MILTON, Defendant-Respondent. W444444444444444444444444444444444444444444444444444 REPLY BRIEF FOR APPELLANT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Appellant JOHN M. CASTELLANO JESSICA L. ZELLNER Assistant District Attorneys 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-6102 JONATHAN T. LATIMER, III, ESQ. 1080 GRAND AVENUE SOUTH HEMPSTEAD, NY 11550 NOVEMBER 14, 2012 Queens County Superior Court Information Number 1543/08 i TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FACTUAL AND LEGAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . 4 THE COOPERATION AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . 4 THE PLEA PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 THE POST-PLEA MOTIONS AND DEFENDANT’S SENTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 POINT ONE DEFENDANT’S ASSERTIONS THAT THE TRANSACTIONS CHARGED IN THE SCI AND THE FELONY COMPLAINT ARE DIFFERENT HAVE NO RECORD SUPPORT . . . . . . . . . . . . . . . . . . . . . . 22 POINT TWO DEFENDANT’S ARGUMENTS CONCERNING THE VALIDITY OF HIS PLEA WERE NOT CONSIDERED BY THE APPELLATE DIVISION AND SHOULD BE REMANDED TO THAT COURT. IN ANY EVENT, THESE ARGUMENTS ARE WITHOUT MERIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 ii TABLE OF AUTHORITIES Page No. Cases People v. Baret, 11 N.Y.3d 31 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Barney, 99 N.Y.2d 367 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Brown, 14 N.Y.3d 113 (2010) . . . . . . . . . . . . . . . . . . . . . . . 31, 42 People v. Castro, 37 N.Y.2d 818 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Edwards, 39 A.D.3d 875 (2d Dept. 2007) . . . . . . . . . . . . . . . . . 29 People v. Fiumefreddo, 82 N.Y.2d 536 (1993) . . . . . . . . . . . . . . . . . . . 31, 33 People v. Ford, 86 N.Y.2d 397 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 People v. Garcia, 92 N.Y.2d 869 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Goldstein, 12 N.Y.3d 295 (2009) . . . . . . . . . . . . . . . . . . . . . 33, 34 People v. Green, 82 A.D.3d 1453 (3d Dept. 2011) . . . . . . . . . . . . . . . . . . 35 People v. Kinchen, 60 N.Y.2d 772 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Lamm, 292 N.Y.224 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Lopez, 71 N.Y.2d 662 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. McLean, 15 N.Y.3d 117 (2010) . . . . . . . . . . . . . . . . . . . . . . . 2, 25 People v. McNair, 13 N.Y.3d 821 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Moisette, 76 N.Y.2d 908 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 33 iii People v. Moore, 71 N.Y.2d 1002 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Nixon, 21 N.Y.2d 338 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 People v. Perry, 36 N.Y.2d 114 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 People v. Pierce, 14 N.Y.2d 564 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. Seeber, 4 N.Y.3d 780 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 34, 42 People v. Tinsley, 35 N.Y.2d 926 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . 42 People v. Velasquez, 1 N.Y.3d 44 (2003) . . . . . . . . . . . . . . . . . . . . . . . 25-26 Statutes C.P.L. § 200.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 C.P.L. § 200.70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 P.L. §155.42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 28 P.L. §190.65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : JACOB MILTON, : Defendant-Appellant. : ---------------------------------------------------------------------- x REPLY BRIEF FOR APPELLANT PRELIMINARY STATEMENT This brief is submitted in reply to Respondent’s Brief, filed by defendant on September 26, 2012. The facts and procedural history of this case are discussed in Appellant’s main brief and will not be repeated here, except to the extent necessary to respond to arguments raised by defendant in his brief. INTRODUCTION In response to the People’s main brief, defendant claims that the factual variations between the felony complaints and the SCI – specifically the naming of two banks and “others” in the SCI to which defendant pled guilty – were not minor and resulted in the SCI charging completely different transactions than those charged in the felony complaints. As a result, 2 defendant contends, the SCI was jurisdictionally defective. In addition, defendant claims that his plea was involuntary, that his waiver of the right to appeal was invalid, that his allocution was insufficient, that the court did not properly inform him of the immigration consequences of his plea, and that the court improperly denied him the right to a hearing on his motion to withdraw his plea. These arguments are unavailing. First, defendant’s assertion that the transactions in the SCI are different from those in the felony complaints has no support in the record. Indeed, to establish this proposition in this Court, defendant relies on entirely new documents, never submitted to the trial court or the Appellate Division. Because these documents are outside the record, this Court should not, of course, rely on them. Moreover, because defendant similarly failed to provide any record support in the Appellate Division, he failed to sustain his burden as appellant in that court of presenting an adequate record to sustain his claim. People v. McLean, 15 N.Y.3d 117 (2010). Accordingly, the Appellate Division erred in adopting his conclusion, and that Court’s determination in this regard should be reversed. 3 Second, defendant has completely failed to contest, or even address, the People’s arguments, set forth in their brief, articulating the standards that should be applied to determine if factual variations in an SCI are permissible. Because defendant has failed to show why these standards should not apply, and because they lead to the conclusion that the factual variations in this case were permissible, defendant’s conclusory assertions to the contrary should be rejected. Third, defendant fails in his attempt to refute the People’s argument that the SCI was jurisdictionally valid because both the SCI and the felony complaint contain the same scheme to defraud count and the grand larceny charge in the SCI was joinable with that charge, as permitted under C.P.L. § 200.15. Defendant simply alleges in conclusory fashion that the charge was not joinable and otherwise fails to explain why that is so, other than to reassert that the transactions are different, again without record support. Fourth, defendant’s claims concerning the waiver of appeal, the voluntariness and sufficiency of his plea, the court’s conduct in warning defendant about potential immigration consequences, and the court’s failure to provide a hearing to defendant on his motions to withdraw his plea, are all claims that were raised below but not ruled on by the Appellate Division. The 4 People respectfully request that this Court remand the case for consideration of those claims. Moreover, in support of these claims, defendant has misstated some of the facts of this case and for this additional reason, the Court should not consider the claims. In any event, defendant’s allocution was proper, the court was under no obligation to inform the defendant of the immigration consequences of his plea, and the trial court did in fact hold a hearing on his motion to withdraw his plea. Thus, these claims are entirely meritless. For all these reasons, the order of the Appellate Division should be reversed and the conviction reinstated. FACTUAL AND LEGAL BACKGROUND THE COOPERATION AGREEMENT On June 24, 2008, defendant signed a cooperation agreement (“Agreement”) with the People. The Agreement required that defendant participate in all investigations and provide complete, truthful, and accurate information and testimony concerning all criminal activities known to him (A: 49, 51). If the District Attorney’s Office (“Office”) judged that defendant had failed to report to any designated law enforcement officials, had given false, misleading, or incomplete information or testimony, impeded any investigation, or not fully complied with the terms of the Agreement, the 5 Agreement would be deemed null and void by the Office and defendant would be subjected to prosecution. If defendant were found in violation of the Agreement, he would immediately be taken into custody (A: 51). Furthermore, the Agreement stated that defendant would plead guilty to one count of Grand Larceny in the First Degree (P.L. §155.42) and one count of Scheme to Defraud in the First Degree (P.L. §190.65[1][A]), with a promise of an open sentence not to exceed two to six years subject to the approval of the court (A: 51-2). Based on the extent of defendant’s cooperation, the Office might recommend a lesser sentence, and might allow defendant to withdraw his plea to Grand Larceny in the First Degree and let stand his plea to Scheme To Defraud in the First Degree, with a recommendation of five years’ probation and a $5000 fine, or else might allow defendant to replead to a lesser charge. The Agreement stated that, if defendant were permitted to plead to a lesser charge, the Office, based on the nature and extent of defendant’s cooperation, might recommend any sentence allowed by law (A: 51-2). If defendant violated the Agreement in any manner, as determined by the Office, the Office would recommend a sentence of four to twelve years. If defendant failed to appear in court, was rearrested, or undermined any 6 ongoing investigation, as determined solely by the Office, it might withdraw its previously promised sentence and recommend any sentence permissible by law, including a maximum permissible sentence of 8 1/3 to 25 years (A: 51-2). Finally, the Agreement provided that the Office was the sole judge of the value of defendant’s cooperation and whether it was meaningful, truthful, and complete and that any offer or sentence would depend on the nature and extent of defendant’s cooperation. The Office could, in its discretion, terminate the Agreement and request that the court sentence defendant to any sentence consistent with the terms of the Agreement, but the court had the right to disregard any recommendation that the Office might make with regard to the plea or sentence (A: 53). Defendant, in the presence of his attorney, initialed each of the first five pages and he signed the fifth page. On the sixth, and final, page, defendant signed and placed his initials after the sentence “I, Jacob Milton, have read this five (5) page letter and discussed it with my attorney who has explained it to me. I hereby acknowledge that it sets forth my entire agreement . . . . I state that there have been no other promises or representations made to me by any person in connection with this matter” (A: 53-4). 7 THE PLEA PROCEEDINGS On June 24, 2008, the prosecutor asked the court to allow defendant to plead guilty under an SCI to one count of Grand Larceny in the First Degree and one count of Scheme to Defraud in the First Degree. These pleas would cover the two dockets pending before the court and would also cover a misdemeanor charge pending before another court (A: 21-2). The prosecutor requested that the court keep the sentence open and if defendant cooperated in good faith with the Office or other law enforcement agencies, the prosecutor might, depending on the extent and nature of defendant’s cooperation, allow defendant to replead to a lesser charge. The prosecutor told the court that if defendant failed to cooperate that he would ask the court to sentence defendant to two to six years and that if defendant was arrested on new charges, he would ask the court to sentence defendant to 8 1/3 to 25 years (A: 22). Defendant was then sworn under oath (A: 23-4). The court acknowledged that defendant executed written waivers of appeal in open court, waiving his right to appeal and his right to be prosecuted by an indictment and agreeing to be prosecuted by an SCI (A: 24). 8 The court explained to defendant that he had the right to be prosecuted by indictment but that by signing the waivers, he was giving up that right (A: 24-5). It stated that the case would be adjourned for updates and that if defendant returned to court and did what he was supposed to do and was not re-arrested, then the maximum sentence imposed would be two to six years. The court further explained that there was a possibility that the prosecutor might agree to dismiss the top counts and let defendant plead to a misdemeanor and might dismiss the case. The court told defendant that if he did not do what he was supposed to do, but came back to court every time the case was on and did not commit any new crimes, then he would be sentenced to the crime of Grand Larceny in the First Degree. The court further stated that if defendant failed to return to court or committed a new crime, he would face a sentence of 8 1/3 to 25 years (A: 25). The court asked defendant if he wanted to plead guilty; defendant responded, “Yes” (A: 25-6). The court asked defendant if he had spoken to his attorney and discussed the plea and the waivers with her. Defendant replied, “Yes, I did.” The court found that the waivers were executed by defendant in open court, were made in a knowing and intelligent manner after defendant conferred with his attorney, and were in compliance with the 9 Criminal Procedure Law; as a result, it approved the waivers (A: 26). Defendant acknowledged that he heard his lawyer tell the court that he wished to plead guilty and that is what he wanted to do (A: 27). The court asked defendant, regarding the Grand Larceny in the First Degree charge, if he admitted that, acting with other persons, he stole certain property whose value exceeded $1 million from Juan Alvarez, Simona Brad, Mercedes Alberenga, and Kenia Nieto. Defendant replied, “No” (A: 27). Defendant’s attorney suggested that defendant tell the court what he did; defendant stated that he was a loan officer who assisted the mortgage bank and the bank’s president and that “the house these people bought the mortgage was [sic] over a million dollars.” The prosecutor tried to clarify that defendant was saying that the value of the homes bought in the names of these people without their knowledge was in excess of $1 million, and defendant said, “No, that didn’t happen” (A: 28). Defendant’s attorney then asked whether defendant assisted Griffin Mortgage to obtain mortgages by fraudulent means; defendant responded, “Yes.” Defendant’s attorney inquired whether defendant was involved in some irregularities and defendant stated, “Yes, I assisted John Messer and Griffin Mortgage” (A: 28-9). The prosecutor then asked whether 1 Defendant’s position, expressed at side-bar and outside the courtroom, was that he would only admit that the victims of his fraud were banks and financial institutions and that the named complainants during the first allocution were complicit in defendant’s crimes. As a result, the SCI was amended to specifically name two banks and “others” that defendant defrauded. See Supplemental Appendix (“SA”)(SA: 17). 10 the value of the properties where the irregularities occurred was in excess of $1 million and defendant said, “Yes.” When the prosecutor asked whether the irregularities involved persons named by the court, defendant said, “No” (A: 29). The prosecutor asked whether defendant assisted Mr. Messer and Griffin Mortgage; defendant replied, “Yes.” When the prosecutor asked whether defendant fraudulently obtained mortgages, defendant did not answer (A: 29-30). The prosecutor asked if defendant knew of the irregularities of the mortgages that were filed and defendant said, “Yes, I did, but not for those people.” The prosecutor asked if the irregularities involved numerous people and were worth more than $1 million and defendant said, “Yes, but not these people” (A: 30). At that point, the court stopped the allocution. The prosecutor requested a side-bar discussion, which was granted.1 After the side-bar discussion, the court said that the case would be recalled (A: 30). 2 As before, the court stated that the case would be adjourned for updates and that as long as defendant did what he was supposed to do, returned to court, and did not commit any new crimes, the maximum sentence he would receive was two to six years. The court explained that the prosecutor might agree to dismiss the felony counts and have him replead to the misdemeanors or even dismiss the entire case. The court further explained that if defendant failed to come back to court or committed a new crime, the plea to the “B” felony would stand and he would sentenced to 8 1/3 to 25 years. The court stated that the two other dockets would be dismissed, an order of protection would be issued, and defendant would be required to pay mandatory surcharges (A: 32-3). 11 When the case was recalled, defendant was again sworn under oath and the court again acknowledged defendant had executed waivers in open court, waiving his right to appeal and waiving his right to be prosecuted by an indictment and agreeing to be prosecuted by an SCI (A: 31-2). The court then again explained the terms of the plea and asked defendant if he wanted to plead guilty; defendant responded, “Yes, I do.”2 The court asked if defendant had discussed the plea and waivers with his attorney; defendant said, “Yes, I did” (A: 33). Defendant acknowledged that he heard his attorney say he wanted to plead guilty to Grand Larceny in the First Degree and Scheme to Defraud in the First Degree and that he wanted to plead guilty (A: 34). The court asked defendant if, regarding the grand larceny charge, he admitted that acting in concert with other people, on or about and between March 1 and October 15, 2007, he stole certain property, the value of which 3 The court misspoke. As to the grand larceny charge, the SCI states that “defendant . . . stole certain property . . . from Indy Mac Bank, WMC Bank, and others” (emphasis added) (A: 14-5). 12 exceeded $1 million, from Indy Mac Back, WMC Bank, and “other banks” (A: 34-5)3. Defendant responded, “Yes.” Next, regarding the scheme to defraud charge, the court asked whether defendant admitted that, acting in concert with other persons, on or about and between March 1 and October 15, 2007, he engaged in a scheme constituting a systematic ongoing course of conduct with intent to defraud ten or more persons and to obtain property from ten or more persons by false or fraudulent presentations or promises, and obtained such property from one or more persons, to wit, a sum of United States currency. Defendant replied, “Yes” (A: 35). The People asked defendant if the money that was stolen and the scheme to defraud involved Mr. Messer and Griffin Mortgage, and defendant responded, “Yes” (A: 35-6). The People asked defendant if his role was to provide papers for mortgages that included irregularities and defendant answered, “No.” The People then asked defendant what his role was in the scheme, and defendant stated that it was to bring customers to Mr. Messer (A: 36). 13 The court then asked defendant if he understood that by pleading guilty, he was giving up his right to a trial and defendant replied, “Yes, I do” (A: 36). The court explained that defendant was giving up his right to confront witnesses, to call witnesses on his own behalf, his Fifth Amendment right to remain silent, his right to testify on his own behalf, and his right to require that the government prove his guilt beyond a reasonable doubt. Defendant responded, “Yes” (A: 37). The court asked defendant if anyone forced him to plead guilty and defendant said, “No.” The court also asked defendant if he had the opportunity to discuss the plea with his attorney; he replied, “Yes.” The court asked defendant if he was satisfied with his attorney’s representation; defendant replied, “Yes, I am” (A: 36). The court then explained again that the case would be adjourned for updates and that as long as defendant did everything he was supposed to do, did not commit any new crimes, and returned to court, the maximum sentence would be two to six years. The court stated that the prosecutor might agree to dismiss the entire case or agree to allow defendant to plead to a lesser charge. The court stated that if defendant failed to return to court or committed 4 The court stated that an order of protection would be issued and he would be required to pay mandatory surcharges. Finally, the court told defendant that the two remaining cases would be dismissed as covered by his plea (A: 38). 14 a new crime, then the plea to the “B” felony would stand and he would be sentenced to 8 1/3 to 25 years (A: 37-8).4 The court asked defendant if any other promises had been made to him; defendant responded, “No.” Next, the court asked defendant if he was a citizen and defendant responded, “No, I’m a permanent resident” (A: 38). The court asked if defendant understood that by pleading guilty, he could face immigration consequences, including deportation, denial of citizenship, or a bar to returning to the country if he left. Defendant’s attorney responded that she had a conversation with defendant about the consequences of his plea, including the possibility of deportation and how the plea could affect his immigration status. The court asked defendant if had a prior felony conviction, and defendant replied, “No.” The court explained to defendant the potential sentencing consequences if it turned out that he had a prior felony conviction and defendant stated, “Okay” (A: 39-40). The court asked if the plea was acceptable to both sides and both attorneys responded, “Yes” (A: 40). 15 THE POST-PLEA MOTIONS AND DEFENDANT’S SENTENCE On March 5, 2009, nearly nine months after pleading guilty, defendant, through new counsel, filed a motion to withdraw his plea, arguing that he was innocent, that the plea was defective because he did not unequivocally admit his guilt, and that it was not knowingly, voluntarily, or intelligently made. Defendant claimed that he never discussed the Agreement or the plea with his attorney and that he did not read the Agreement. Defendant further alleged that he was confused and was threatened by his attorney and the prosecutor that if he did not take the plea, he and his co- defendant would go to jail. Defendant further alleged that his attorney failed to advise him of the consequences of his plea and that he did not have a clear understanding of the likelihood that by entering a plea, he would jeopardize his ability to reside in the United States (SA: 1-13). The People responded that the minutes of the plea belied defendant’s claims, noting that the only difficulty that defendant had during his plea concerned the identities of his victims, not the crimes themselves. The trial prosecutor stated in his response that defendant’s position, expressed at side-bar and outside the courtroom, was that he would only admit that the victims of his fraud were banks and financial institutions and that the named 16 complainants during the first allocution were complicit in defendant’s crimes. As a result, the SCI was amended to specifically name two banks and “others” that defendant defrauded. The People contended that defendant’s plea was sufficient because defendant admitted that his role was to take customers to Griffin Mortgage and Mr. Messer. The People also stated that defendant’s first allocution remained part of the record, as defendant never retracted his initial admissions. The People also noted that defendant waived his trial rights and told the court he had discussed the plea with his attorney and was satisfied with her representation. Additionally, the People argued that defendant had the opportunity to inform the court that he had immigration concerns and did not do so when the court addressed the issue. Further, defendant said nothing to the court or his attorney about having any questions about the possible immigration consequences of his plea (SA: 14-20). On April 28, 2009, defendant filed a supplemental affidavit in support of his motion to withdraw, reiterating his argument that his plea was involuntary, that he did not receive the effective assistance of counsel, and that he was innocent. Defendant also contended that his one-word responses to the court’s questions were insufficient to establish his guilt and that his attorney improperly participated in the allocution by questioning him. In addition, 17 defendant claimed that his involvement with Griffin Mortgage consisted of collecting credit information from customers and forwarding that information to Griffin Mortgage for review and approval. If the credit was approved, defendant would then refer the customer to Griffin Mortgage to apply for a mortgage (SA: 21-37). The People did not respond to defendant’s supplemental affidavit. In a written decision dated June 16, 2009, the court denied defendant’s motion, finding that defendant’s plea was knowing and voluntary, that his allocution did not raise any potential defenses, and that defendant’s difficulty with the allocution had to do with the specific identities of the victims of the crimes. The court further found that defendant’s allocution satisfied the elements of the grand larceny and scheme to defraud charges when he admitted that: he assisted Griffin Mortgage by fraudulent means; he assisted Mr. Messer and Griffin Mortgage to obtain mortgages with irregularities; the value of the properties covered by the mortgages was in excess of $1 million; and his role in the scheme was to bring clients to meet with Mr. Messer. The court noted that defendant signed the Agreement, indicating that he had read it and that it had been explained to him by his attorney. The court also found that defendant was advised in court and in writing of the possible immigration 18 consequences of his plea, that his attorney represented in open court that she had advised defendant of the consequences, and there was no evidence that defendant challenged his attorney’s representations to the court at the time they were made. The court concluded that there was sufficient evidence to show that defendant understood the charges and made an intelligent decision to enter a plea (A: 55-69; SA: 38-52). Following the court’s decision, defendant was remanded and the People moved to sentence defendant. Ten months later, in April, 2010, defendant moved, through his attorney, to renew and reargue his motion to withdraw his plea, or, if the court were unwilling to grant his motion, defendant sought specific performance of the Agreement. Defendant argued that he was innocent and did not read the Agreement because his attorney prevented him from reading it, and that he was coerced to take the plea. Defendant also asserted that he was at odds with his attorney, that she refused to allow him to speak to an immigration attorney before pleading guilty, and ignored his concern that neither she, nor anyone involved with his case, was an immigration expert. Defendant also alleged that he never read the waiver of appeal form and that his attorney did not explain it to him, and requested that if the court would not allow him to withdraw his 5 Defendant objected to the court’s consideration of uncharged crimes or incidents that occurred prior to defendant entering into the Agreement, stating that “incidents related to misconduct that preceded the cooperation agreement . . . they have no bearing whatsoever 19 plea, that it credit his cooperation, vacate his grand larceny plea and sentence him to time served on his scheme to defraud plea. Defendant requested a hearing if the court were unwilling to grant his motion (SA: 53-5). The People did not respond to this motion. The court granted defendant’s request and held a hearing to determine whether or not defendant had fulfilled the terms of the Agreement. At the hearing, the People called one witness, Larry Schwartz, an investigator from the District Attorney’s Office (SA: 56-87). Investigator Schwartz testified that defendant had numerous aliases and Social Security numbers and that the People did not uncover any fraud by others from a list of properties that defendant had provided to them. In fact, in several instances, the fraud was traced back to defendant (SA: 68-85). Additionally, the People introduced into evidence checks to show that defendant stole the identities of two people (SA: 79-85). The People also told the court that defendant filed false information when he applied for political asylum by not telling the government that he had filed previous applications using different names (SA: 98-9).5 at this hearing . . .” (SA: 163). 20 The People also told the court that other law enforcement agencies who met with defendant found him to be incredible (SA: 94-5, 121). Defendant’s attorney made extensive arguments, disputing the People’s evidence, stating that there was no proof that defendant stole identities or that he funneled money to his own accounts. Rather, defendant’s attorney stated that the money defendant received were legal commissions (SA: 101-06). He stated that the People had not given defendant a fair chance and that the People, by failing to follow-up on leads, had acted in bad faith (SA: 106-110). He stated that defendant had, in fact, provided information to the People concerning fraudulent title work and the location of a person of interest and that the list of properties provided to the People reflected the fraud (SA: 110-117). Defendant, himself, spoke at length about the cooperation he provided, telling the court that: he met with the People six or seven times; he provided them with information about a particular individual that they were interested in and about accountants filing false tax returns; and he gave the People information about Mr. Messer (SA: 129-154, 183-4). 21 The People responded that its investigators had examined the disbursements in question and they showed that defendant had profited from them (SA: 120, 161-2). Before concluding the hearing, the court asked defendant if he wished to present additional evidence, in the form of witnesses, but he declined (SA: 184-5). On October 28, 2010, the court issued its written decision, finding that defendant had failed to comply with the terms of the Agreement. Specifically, the court found that defendant engaged in bad faith and that following his plea, information that defendant provided in fact revealed that he was responsible for the fraud and profited from the scheme to defraud by assuming the victims’ identities. The court noted that other law enforcement agencies had found defendant incredible (A: 70-80; SA: 202-212). The prosecutor recommended to the court that it sentence defendant to four to twelve years’ incarceration; defendant requested a sentence of 364 days in jail. The court sentenced defendant to two to six years’ incarceration on the charge of Grand Larceny in the First Degree (a sentence within the parameters of the promised sentence if defendant had actually fully 22 cooperated) and vacated his plea to Scheme to Defraud in the First Degree (SA: 99-100, 119, 162, 196-7). POINT ONE DEFENDANT’S ASSERTIONS THAT THE TRANSACTIONS CHARGED IN THE SCI AND T H E F E L O N Y C O M P L A I N T A R E DIFFERENT HAVE NO RECORD SUPPORT In his brief, defendant claims (Respondent’s Brief: 9, 31, 33-4) that the SCI was jurisdictionally defective because the crimes charged in the felony complaints were not the same offenses to which defendant pled guilty under the SCI. Specifically, defendant contends that the naming of two banks and “others” in the SCI changed the transactions, and therefore the crimes charged, rendering the SCI fatally defective. But, as argued in the People’s main brief (Appellant’s Brief: 21- 46), applying either a “prejudice” standard or the standard applicable to the amendment of indictments, the SCI was jurisdictionally valid. Additionally, naming the banks and “others” was sufficiently broad to cover the individuals previously named in the felony complaint. Finally, the SCI remains jurisdictionally sound because one offense, the scheme to defraud, is properly charged in the SCI and the grand larceny charge is joinable to that offense. 23 At the outset, it should be noted that defendant’s assertions are not founded on the record. His bald assertion that the transactions charged in the SCI are different from those charged in the SCI is based on extra-record material that this Court should not consider. Specifically, defendant claims that the banks named in the SCI, WMC Bank and Indy Mac Bank, were not involved in the transactions initially charged and never suffered any financial losses. Defendant attaches documents to his appendix that purport to support this position (Respondent’s Brief: 9-10, 20-1, 24-5, 31, 33). First, defendant misstates the facts when he claims that he contended in his three motions to withdraw that he had no involvement with the selection of the named banks (Respondent’s Brief: 10). In fact, defendant never raised this claim until he did so in his reply brief before the Appellate Division. Second, defendant is incorrect when he states that he never provided the names of the banks to the People (Respondent’s Brief: 10, 26-7, 37). As the People explained in their original brief (Appellant’s Brief: 8, 14-5, 32, 40), defendant told the prosecutor that he would plead guilty to the SCI with Indy Mac Bank and WMC Bank as complainants (A: 44, 59-60, 78) and the prosecutor revised the SCI on this basis. Moreover, defendant is incorrect 24 when he claims that the People never asserted that the names of the banks came from defendant (Respondent’s Brief: 10, 26, 37). In their April 6, 2009 motion opposing defendant’s motion to withdraw, the People discussed the circumstances under which the SCI was revised, noting that “at the first call and attempt to take a plea, the defendant balked at admitting to have taken money from the named complainants, Juan Alvarez, Simona Brad, Mercedes Alberenga, and Kenia Nieto. It was the defendant’s position, as expressed at sidebar and outside the courtroom, that the defendant would only admit that the banks and financial institutions from whom the money taken were victimized. It was the defendant’s position that the named complainants were somehow complicit in the defendant’s crimes and that they were not victims. A result of this position was that the SCI[] [was] redrafted and amended to name Indy Mac Bank and WMC Bank, specifically, and defendant admitted to stealing from these . . .” (SA: 17). Third, defendant’s suggestion that Citigroup, rather than Indy Mac Bank and WMC Bank, was involved in the transactions (Respondent’s Brief: 21, 24, 29-31) is in error. The reference to Citigroup was in the felony complaint under Docket Number 2007QN057455. This felony complaint was dismissed as covered by the SCI to which defendant pled guilty. The SCI to 6 To the extent that this Court were inclined to consider defendant’s documents, included in his appendix, the People request that this Court allow the People to submit documents demonstrating that WMC Bank and Indy Mac Bank were, in fact, involved in the transactions referenced in the felony complaints. 25 which defendant pled guilty specifically referenced the other felony complaint, under Docket Number 2007QN057454, which did not contain a reference to Citigroup (A: 4-7, 14-8). Therefore, nothing in the felony complaint suggests that Indy Mac Bank and WMC Bank were not involved in the transactions.6 In addition, defendant failed to overcome the presumption of regularity and establish in the Appellate Division that the transactions were different merely because the names of the complainants changed. Further, defendant did not provide the Appellate Division with the documents he now attaches to his brief. Because defendant’s claim had no record support, the Appellate Division erred when it adopted his argument because it did not hold defendant to his burden of establishing, through record evidence, that the transactions were different. Defendant cannot now present this documentary evidence to this Court where it was never part of the record below and where he failed to meet his burden of establishing a proper record. While defendant need not have preserved his claim below, he still had the obligation to make a sufficient record to establish that the crimes charged, or transactions, were different. McLean, 15 N.Y.3d at 121; People v. Velasquez, 1 N.Y.3d 44 26 (2003); People v. Barney, 99 N.Y.2d 367 (2003); People v. Kinchen, 60 N.Y.2d 772 (1983) (sufficient factual record necessary for appellate review). This he failed to do. In addition to making mere assertions that the transactions charged in the SCI were different than those charged in the felony complaints, defendant has completely failed to address the People’s arguments concerning the standards that courts should apply when determining whether or not an SCI that varies factually from a corresponding felony complaint is jurisdictionally valid. Instead, defendant makes the entirely unsubstantiated claim that Appellant “urges this Court to adopt the reasoning that no matter what factual scenario is presented in the complaint the People have the right to alter or even completely change the factual allegations in the SCI so long as the new facts make out the same numerically designated statutory crime” (Respondent’s Brief: 35). The People did not make this argument in its initial brief. Rather, the People suggested different standards that courts could apply to determine if factual variations between a felony complaint and SCI were permissible. The People in no way argued that any and all factual variations would be acceptable. 27 Indeed, as the People argued in their brief (Appellant’s Brief: 3-8, 25-34), the “prejudice” standard set forth in C.P.L. § 200.70(1) should be applied to determine the validity of SCIs that vary factually from their corresponding felony complaints. Applying this standard, it is clear that the SCI to which defendant pled guilty was not jurisdictionally defective. Defendant was provided with fair notice of the accusations levied against him in order for him to be able to prepare a defense and the SCI identified with sufficient specificity what crime or crimes defendant was charged with, in order that defendant not risk retrial on those charges. Moreover, the SCI specifically referenced the felony complaint to remove any possible ambiguity in this regard. And, as the People argued (Appellant’s Brief: 8-10, 34-41), even applying the standard for amending indictments set forth in C.P.L. § 200.70(1), the SCI was jurisdictionally valid because the factual variances did not change the theory of the case. Defendant has not contested, or even addressed, the applicability of these standards. Because defendant provides no reason for this Court to refrain from using those standards, and because application of the standards leads to the conclusion that the variances were permissible, defendant’s mere assertions that the transactions were different must fail. 7 Defendant incorrectly states that defendant was charged with Grand Larceny in the First Degree (P.L. § 155.42) under Docket Number 2007QN057454 and Docket Number 2007QN057455 (Respondent’s Brief: 20-1, 29-30). In fact, defendant was only charged with first degree grand larceny under Docket Number 2007QN057454) (A: 4-7). 28 In addition, defendant’s contention that the charges were not joinable (Respondent’s Brief: 35) is also without merit, as defendant has merely stated that “a concession that the offense contained in the SCI is different from that contained in the complaint is a concession that the SCI is improper under the statute” (Respondent’s Brief: 36).7 First, the People never conceded that either of the offenses charged in the SCI were different from those charged in the felony complaints. The People argued, instead, that if this Court were to find that changing the names of the complainants constituted too radical a variance, and that the first-degree grand larceny charge in the SCI was a different crime than that charged in the felony complaint, the SCI remained jurisdictionally sound because the scheme to defraud was properly charged in the SCI and the grand larceny charge was joinable with that offense (Appellant’s Brief: 42). Defendant does not address the argument that the grand larceny charge was properly joinable with the scheme to defraud charge in that it shared common elements, the criminal conduct at the “heart of each crime” was comparable, and the “essential nature of the criminal conduct” was the same. People v. Pierce, 14 N.Y.3d 564, 573-74 (2010). Instead, defendant 29 merely repeatedly asserts, again by providing documents outside the record, that the banks were not involved in the financial transactions charged in the felony complaints. Moreover, defendant does not address the People’s argument that even if it were error to name the banks as complainants, this error was obviated because the SCI named not only the banks but also “others” and therefore that term was sufficiently broad to cover the individuals previously named in the felony complaint. Instead, defendant contends that he specifically refused to plead guilty to any allegations involving those complainants named in the original complaints (Respondent’s Brief: 20). But, as argued in the People’s main brief (Appellant’s Brief: 41), while the term “others” was generic, there is no question that the breadth of the term was sufficient to encompass these three individual victims, and that the names of those victims, should they be required for any relevant purpose, appeared in the felony complaint specifically referenced in the SCI. Therefore, defendant’s response to the People’s argument is without merit. Defendant’s reliance on People v. Edwards, 39 A.D.3d 875 (2d Dept. 2007) (Respondent’s Brief: 31-2), a lower court case, is misplaced and is distinguishable from the facts of this case. In Edwards, defendant pled 30 guilty to Attempted Robbery in the Second Degree which possessed an element – physical injury – not in the counts in the SCI. This changed the theory of prosecution and rendered the crime to which defendant pled guilty legally distinct from the crime in the SCI. Indeed, it was neither the same offense nor a lesser included offense. No such change occurred here. Moreover, Edwards is not consistent with People v. Lamm, 292 N.Y.224 (1944) (Appellant’s Brief: 36) in which this Court approved the amendment of the name of the complainant in the indictment, and this Court has never reviewed it. POINT TWO DEFENDANT’S ARGUMENTS CONCERNING THE VALIDITY OF HIS PLEA WERE NOT CONSIDERED BY THE APPELLATE DIVISION AND SHOULD BE REMANDED TO THAT COURT. IN ANY EVENT, THESE ARGUMENTS ARE WITHOUT MERIT. In addition to asserting, without support, that the transactions charged in the SCI were different from those charged in the felony complaints, defendant raises several claims in his brief that he raised in the Appellate Division. The Appellate Division, having ruled that the SCI was jurisdictionally defective, declined to address defendant’s remaining claims (A: 3). The People request that this Court remand the remaining claims to the 8 Defendant’s claim that the waiver of his right to appeal was invalid is inconsequential since his other challenges to the validity of the plea would survive the waiver of appeal. The People therefore do not address the waiver issue. 9 Defendant’s assertion (Respondent’s Brief: 13, fn. 4) that trial counsel touted her ability and relationship with the prosecutor is also dehors the record. 31 Appellate Division for a determination of the merits. In any event, each of these claims is without merit.8 First, defendant contends that his plea was not voluntary since it was the product of coercion, threats, and tension between him and his attorney (Respondent’s Brief: 5-6, 10, 12-3, 18-20, 25-6, 36).9 This claim is belied by the record. Nothing on the record supports defendant’s claim; and in fact, under oath, on the date of his plea, defendant stated that he had discussed the plea with his attorney, that he was satisfied with his attorney, that no one forced him to take the plea, and that no other promises had been made to him. (P: 26, 33, 37-8). See People v. Brown, 14 N.Y.3d 113, 118 (2010) (“where a careful scrutiny of the motion to withdraw reveals that defendant’s allegations fail to raise a legitimate question as to the voluntariness of the plea, the court may deny the motion without a hearing”); People v. Fiumefreddo, 82 N.Y.2d 536 (1993). 32 It was only after the plea, approximately nine months later, for the first time, that defendant claimed that he had been coerced by his attorney and the People to plead guilty and that he did not understand the consequences of his plea. This delay undermines defendant’s claims. Moreover, in its June 16, 2009 decision, the lower court concluded that there was “not a scintilla” of evidence to support defendant’s claims that he was coerced to take the plea, other than defendant’s uncorroborated and self-serving assertions (A: 66-7; SA: 49-50). The court found that defendant’s “sequential allocutions” did not reveal the existence of a defense and noted that his plea was advantageous to him, reducing his prison exposure to two to six years, with the possibility of less time, depending on the quantity and quality of cooperation he provided (A: 68-9; SA: 51-2). As a result, the court concluded that there was no support for defendant’s argument that his attorney committed any professional errors or failed to provide meaningful representation. The court ultimately concluded that based on all of these factors on the record, the plea was knowing, voluntary, and intelligent and denied defendant’s motion to withdraw (A: 69; A: 52). The court below correctly found that defendant’s plea was proper in all respects. Defendant admitted his guilt and told the court that he had 10 Defendant told the court repeatedly that he wished to plead guilty (A: 25-7, 33-4) and admitted his guilt, telling the court that he assisted Griffin Mortgage and Mr. Messer to obtain mortgages by fraudulent means and that the value of the properties was in excess of $1 million (A: 28-30, 34-6). His only objection, as noted above, was to the names of individual complainants. 33 discussed the plea with his attorney and was satisfied with her representation, and that no one forced him to plead guilty (A: 26, 33, 37). Further, defendant never stated that he was innocent; to the contrary, defendant consistently maintained his guilt.10 Thus, as the court correctly ruled, there is no evidence of any coercion, fraud, or mistake. Second, defendant claims that his allocution was insufficient because the court read the SCI and asked defendant if it was true, rather than allowing defendant to answer in his own words (Respondent’s Brief: 17). Defendant’s claim is without merit. A guilty plea will be upheld as valid if it was entered into voluntarily, knowingly, and intelligently. Fiumefreddo, 82 N.Y.2d at 543; People v. Moisette, 76 N.Y.2d 908 (1990). There is no mandatory or uniform catechism for a court to follow during a plea, and a court does not have to include every right a defendant waives when he pleads guilty, to render the plea appropriate and sufficient. People v. Goldstein, 12 N.Y.3d 295 (2009); People v. Baret, 11 N.Y.3d 31 (2008); People v. Lopez, 71 N.Y.2d 662 (1988); 34 People v. Nixon, 21 N.Y.2d 338 (1967). Moreover, the precise contours of the plea are left to the sound discretion of the court. People v. Seeber, 4 N.Y.3d 780 (2005). Here, defendant’s one-word responses were sufficient to assure the court that defendant’s plea was knowing, voluntary, and intelligent and no further inquiry was necessary. See Goldstein, 12 N.Y.3d at 301 (“we have refused to disturb pleas by canny defendants even where there has been absolutely no elicitation of the underlying facts of the crime”). And, examining the allocution in its totality, defendant’s plea was not solely comprised of one-word responses. In fact, defendant not only admitted that he obtained mortgages whose value exceeded one million dollars by fraudulent means, but he also told the court in his own words that he “assist[ed] the mortgage bank and the bank’s president, and the house these people bought the mortgage was over a million dollars ” (A: 10-12), thereby satisfying the elements of the charged crimes, by showing that he intentionally participated with others to obtain fraudulent mortgages worth in excess of $1 million. In fact, in both allocutions, defendant admitted his guilt, defendant repeatedly told the court that he wanted to plead guilty (A: 25-7, 33), and 35 defendant’s responses to the court were clear and appropriate. See People v. McNair, 13 N.Y.3d 821 (2009); People v. Moore, 71 N.Y.2d 1002 (1988). There is no indication that defendant was uninformed, confused, or incompetent, when he pled guilty. See People v. Garcia, 92 N.Y.2d 869 (1998); People v. Castro, 37 N.Y.2d 818 (1975). Third, defendant contends that he was unaware and uninformed about the conditions of his plea (Respondent’s Brief: 5). However, defendant’s claim is belied by the record; the court repeatedly articulated the terms of the Agreement and the possible sentences defendant faced (A: 25, 30-3, 37-8). While the court did not read verbatim from the Agreement, it was not required to do so, and the record demonstrates, contrary to defendant’s contention (Respondent’s Brief: 14, 17) that the court accurately summarized the substance of its terms. See People v. Green, 82 A.D.3d 1453, 1453 (3d Dept. 2011) (defendant’s plea knowing, voluntary, and intelligent where court advised defendant “at length” of the terms of the agreement and the rights he was giving up by pleading guilty and defendant did not express any concerns, instead “assuring the [court] that he understood his rights and was proceeding freely, had consulted and was satisfied with defense counsel and admitted his guilt”). 36 For example, at the time of the plea, the People explained the terms of the Agreement (A: 21-2) and on three separate occasions the court explained to defendant that, as long as he fulfilled his obligations under the Agreement, and returned to court, the maximum sentence that he would receive would be two to six years’ incarceration (A: 25, 32, 37-8). This is an accurate statement (A: 51-2). The court next explained to defendant that there was a possibility that the People would dismiss the top counts and let defendant plead to a misdemeanor, and that the People might even dismiss the case (A: 25, 32- 3, 38). This again was an accurate statement (A: 51-2). The court further stated that if defendant did not do what he was supposed to do under the Agreement, but came back to court and was not rearrested, then the plea to the “B” felony would stand, and he would be sentenced accordingly (A: 25, 33, 38). This again was an accurate statement (A: 51-2). Next, the court explained that if defendant failed to return to court or committed another crime, he faced a sentence of eight and one third to twenty-five years’ incarceration (A: 25, 33, 38). Again, this was an accurate statement (A: 51-2). Further, defendant never told the court that he did not understand the terms, and, as has been discussed above, told the court on three occasions that he had discussed the plea with his attorney and was satisfied with her 37 representation (A: 26, 33, 37). Defendant also signed and initialed the Agreement, acknowledging in it that he discussed its terms with his attorney and that no other promises had been made (A: 53-4). Moreover, defendant never stated that he did not understand the plea or the Agreement during the plea proceedings although he had ample opportunity to do so. Rather, defendant repeatedly stated that he had discussed the plea with his attorney and that he wanted to plead guilty (A: 25-7, 33-4, 37). Thus, as the court below found, defendant’s claims that he did not understand the Agreement were unsupported by any evidence and were, in fact, contradicted by both the record of defendant’s plea as well as defendant’s signatures on the Agreement, acknowledging that he had discussed it with his attorney. And in its June 16, 2009 decision denying defendant’s motion to withdraw his plea, the court, who had presided over defendant’s plea, noted that defendant had failed to come forward with any evidence to rebut the facts contained in the record (A: 58; SA: 41). It found that defendant’s claims that he was confused and misapprehended the severity of the crimes he was pleading guilty to, and that his allocution was incomplete and an insufficient basis upon which to support a conviction, were meritless. The court 38 acknowledged that defendant’s first attempt to plead guilty was marked by “apparent inconsistencies” between defendant’s admissions and the People’s offer of proof and that the court had initially refused to accept the plea. (A: 59; SA: 42). The court found, however, that following a side-bar conference and a recess, and after consideration of defendant’s sworn statements during both allocutions, defendant’s plea was knowing and voluntary (A: 60; SA: 43). The court specifically concluded that defendant satisfied the elements of the crimes to which he pled guilty when he admitted, under oath, that he assisted Griffin Mortgage and Mr. Messer to obtain mortgages by fraudulent means by bringing customers to meet with Mr. Messer, that these mortgages contained irregularities, and that the value of the properties covered by the mortgages containing these irregularities was in excess of $1 million (A: 63-4; SA: 46-7). It noted that during the first allocution, defendant admitted his guilt to both Grand Larceny in the First Degree and Scheme to Defraud in the First Degree and that while defendant had difficulty allocuting to specific identities of the alleged victims, during his second allocution, he affirmed his plea to both crimes and was not asked to name specific victims as part of the plea. The court found that the pleas were entered pursuant to a cooperation agreement, which defendant signed, acknowledging that he had read it and 11 Defendant does not now argue, as he did in the Appellate Division, that his attorney failed to provide proper advice to him concerning the potential immigration consequences of his plea. 39 discussed it with his attorney (A: 64; SA: 47). Based on the record cited by the plea court, the court properly concluded that there was sufficient evidence to show that defendant’s understood the charges and made an “intelligent” decision to enter a plea (A: 65; SA: 48). Fourth, defendant claims that it was improper for the court not to ask any follow-up questions about his understanding of the potential immigration consequences of the plea after defense counsel informed the court that she had spoken to him about the consequences following the court’s question whether or not he understood that there could be possible immigration consequences of his plea (Respondent’s Brief: 17-8).11 This claim is meritless. It is well settled that a court is not required to warn a defendant of the possible deportation consequences of a conviction. People v. Ford, 86 N.Y.2d 397 (1995). Nonetheless the court warned defendant that as result of his plea he faced potential immigration consequences, including deportation, denial of citizenship, or a bar to returning to the country if he left (A: 38-9). Immediately afterward, defendant’s attorney stated that she had a conversation with defendant about the consequences of his plea, including the possibility of 40 deportation and how the plea could affect his immigration status. Defendant remained silent (A:39). The court had no further obligation to question defendant about his understanding of the immigration consequences of his plea. And, in its June 16, 2009 decision on defendant’s initial motion to withdraw his plea, the court found that defendant’s claim that he did not understand the immigration consequences of his plea was “factually at odds with the record” (A: 65; SA: 48). The court correctly noted that defendant was advised by the court and in the written waiver form of the possible immigration consequences. The court stated that while the attorney had no obligation to provide advice about the immigration consequences of the plea, she stated, on the record, that she had done so, and defendant did not challenge that representation (A: 66; SA: 49). The court concluded that the only evidence that the attorney did not provide advice about the possible immigration consequences of the plea came from defendant’s self-serving affidavit. As a result, the court found that defendant was made aware at the time of the plea of the possible immigration consequences and knowingly proceeded with the plea (A: 66; SA: 49). 41 This decision was correct. The court clearly told defendant that he faced possible immigration consequences as a result of his plea (A: 38-9). Immediately after that, defendant’s attorney told the court that she had discussed the possible immigration consequences of the plea with defendant, and defendant did not deny this representation. The potential immigration consequences of his plea were raised during his plea and he did not contest or question any of those statements. Thus, defendant’s claim that the court improperly failed to question defendant about his understanding of the potential immigration consequences of the plea is without merit. Finally, defendant claims that he was improperly denied a hearing by the court after he filed three motions to withdraw his plea (Respondent’s Brief: 19, 26, 36-7). But the court ordered a hearing before sentencing defendant and during the course of this hearing, defendant presented evidence to the court and was given the opportunity to call witnesses, which he declined to do (SA: 184-5). With respect to sentencing hearings, this Court has explained that “the key is whether the defendant has been afforded an opportunity to refute those aggravating factors which may have negatively influenced the court” People v. Perry, 36 N.Y.2d 114, 119 (1975). By holding a hearing, a 42 proceeding that lay in its discretion, the lower court created a forum to resolve a disputed factual issue. And, having provided no basis for allowing defendant to withdraw his plea, the court properly proceeded to sentence defendant. Seeber, 4 N.Y.3d at 781-2. Here, the record demonstrates that the court considered not only the People’s evidence but also defendant’s evidence that he had complied with the terms of the Agreement. This evidence consisted of attorney argument, extensive statements by defendant, a pre-sentence memorandum, and an affirmation from a former United States Congressman, Benjamin Gilman, on behalf of defendant (SA: 101-119, 129-154, 171-6, 195; 198-201). The court also gave defendant the opportunity to call witnesses, but he declined to do so (SA: 184-5). The evidence was presented over the course of four days, and it was only after all of this evidence and argument that the court found defendant in violation of the Agreement and sentenced defendant. While due process required that the court satisfy itself that there was a legitimate basis for a finding that a defendant violated the terms of the Agreement, the court was not required to conduct an evidentiary hearing. People v. Brown, 14 N.Y.3d 113 (2010); People v. Tinsley, 35 N.Y.2d 926, 927 (1974) (noting that “[t]he nature and extent of the fact-finding procedures 43 prerequisite to the disposition of such motions [to withdraw a plea] rest largely in the discretion of the Judge to whom the motion is made. Only in the rare instance will a defendant be entitled to an evidentiary hearing; often a limited interrogation by the court will suffice. The defendant should be afforded reasonable opportunity to present his contentions and the court should be enabled to make an informed determination . . .”). The court here more than complied with these obligations. Moreover, the defendant received a very favorable outcome as a result of the court’s hearing. Although the court found that the defendant had failed to comply with the agreement, it sentenced defendant to two to six years’ incarceration, within the terms of the promised if he had fully cooperated. In addition, the court outright dismissed the scheme to defraud count. Thus, the court was balanced and fair in its determination of the defendant’s motion. The record thus demonstrates that not only did the court adhere to the cooperation agreement, but that defendant actually gained a benefit when the court vacated one of his convictions. Moreover, the hearing that the court conducted and the evidence that it considered were proper and therefore defendant’s due process rights were not violated.. * * * 44 In sum, the Appellate Division improperly reversed defendant’s first degree grand larceny conviction and improperly dismissed the SCI because the SCI was jurisdictionally sound. Defendant’s assertions that the transactions charged in the SCI were different from those charged in the felony complaints is without merit. Moreover, defendant improperly bases his argument on extra record material that purports to demonstrate that the named banks were not involved in the transactions. This is entirely improper and this Court should not consider these documents. Additionally, defendant has completely failed to respond to the People’s arguments raised in their main brief and bases many of his claims on incorrect facts. For all these reasons, defendant’s claims are without merit. Finally, defendant raises a series of claims about the waiver of appeal, the voluntariness and sufficiency of his plea, the court’s conduct in warning defendant about potential immigration consequences, and the court’s failure to provide a hearing to defendant on his motions to withdraw his plea. The Appellate Division declined to address these claims, and the People request that this Court remand the case to the Appellate Division for consideration of those claims. In any event, they are meritless. 45 CONCLUSION For the reasons set forth above, the order of the Appellate Division reversing defendant’s judgment of conviction and dismissing the SCI should be reversed and the SCI and the conviction reinstated. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County _________________________ By: Jessica L. Zellner JOHN M. CASTELLANO JESSICA L. ZELLNER Assistant District Attorneys Of Counsel November 14, 2012