The People, Respondent,v.Stephen Pellegrino, Appellant.BriefN.Y.October 20, 2015APL-;u)/5-000{2- To be a'P'cd by YUVALSIMCHl-LEVI jfietu ~ork ~upreme ([ourt Appellate Term - First Department THE PEOPLE OF THE STATE OF NEW YORK, &spondent, - against- STEPHEN PElLEGRINO, Defendant-Appellant. BRIEF FOR RESPONDENT YUVr\L SIMCHI-LEVI CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New Y Ol:k, New York 10013 (212) 335-9000 danyappeals@dany.nyc.gov ASSISTANT DISTRICT ATTORNEY OjColmse/ TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................... ii INTRODUCTION ............................................................................................................ ". 1 THE PLEA AND SENTENCING PROCEEDING ..................................................... 2 POINT DEFENDANT FAILED TO PRESERVE HIS COMPLAINTS ABOUT HIS GUILTY PLEA. IN ANY EVENT, HE PLED GUILTY VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLy .............................................. 4 CONCLUSION ................................................................................................................... 15 TAB! E OF AUTHORITIES FEDERAL CASES Boykin v. Alabama, 395 U.S. 238 (1969) .................................................................... 6~7, 13 Bradshaw v. Stumpf, 545 U.S. 175 (2005) ............................................................................ 6 Hanson v. Phillips, 442 F.3d 789 (2d Cir. 2006) ......................................................... 12~13 Henderson v. Morgan, 426 U.S. 637 (1976) ....................................................................... 10 Marshall v. Lonberger, 459 U.S. 422 (1983) ....................................................................... 10 Willbrightv. Smith, 745 F.2d 779 (2d Cir. 1984) ......................................................... 7,14 STATE CASES People v. Aleman, 43 A.D.3d 756 (1st Dept. 2007) ............................................................ 6 People v. Bab~ 7 A.D.3d 468 (1st Dept. 2004) ................................................................... 5 People v. Bell, 25lVlisc.3d 131(A) (App. Tonn 1st Dept. 2009) ...................... 5, 7, 11, 14 People v. Butler, 200 A.D.2d 515 (1st Dept. 1994) .......................................................... 12 People v. Colon, 42 A.D. 3d 411 (1st Dept. 2007) .............................................................. 6 People v. Daley, 23l\1isc.3d 145(A) (App. Term 1st Dept. 2009) .................................... 5 People v. Diaz, 97 A.D.2d 851 (2d Dept. 1983) ................................................................. 6 People v. Fisher, 70 AD.3d 114 (2009) ............................................................................. 11 People v. Foster, 13 A.D .3d 127 (1 st Dept. 2004) ............................................................ 12 People v. Francis, 38 N.Y.2d 150 (1975) ................................................................... 7.8,10 People v. Gibson, 54 A.D.3d 350 (2d Dept. 2008) .......................................................... 6 People v. Gillard, 111 A.D.2d 666 (1 st Dept. 1985) ......................................................... 13 People v. Grant, 54 AD.3d 589 (1st Dept. 2008) ............................................................... 4 People v. Hards, 61 N.Y.2d 9 (1983) .................................................................... 7 ~8, 11, 13 'll~ People v. Lopez, 71 N.Y.2d 662 (1988) ............................................................... 4-5,13-14 People v. Minucci, 47 A.D.3d 600 (1st Dept. 2008) ......................................................... 14 People v. Montford, 134 AD.2d 207 (1st Dept. 1987) .................................................... 10 People v. Moore, 71 N.Y.2d 1002 (1988) ............................................................................. 8 People v. Mouluie, 29 Misc.3d 135(A) (App. Tetm 1st Dept. 2010) ............................... 5 People v. Negron, 222 AD.2d 327 (1st Dept. 1995) .......................................................... 5 People v. Nixon, 21 N.Y.2d 338 (19679), cett. denied, 393 U.S. 1067 (1969) ................................................................... 7-8,10-11 People v. Perez, 214 A.D.2d 356 (1st Dept. 1995) ............................................................ .4 People v. Plaskett, 303 AD.2d 276 (1st Dept. 2003) ......................................................... 8 People v. Ramirez, 159 A.D.2d 392 (1st Dept. 1990) ......................................................... 8 People v. Rodriguez, 83 A.D.3d 449 (1st Dept. 2011) ....................................................... 5 People v. Seaberg, 74 N.Y.2d 1 (1989) .......................................................................... 8, 11 People v. Seeber, 4 N.y'3d 780 (2005) ................................................................................. 7 People v. Smith, 2002 NY Slip Op 40288U (App. Tem} 9th and 10th Dist. 2002) ....... 6 Peoplev. Sullivan, 25 Misc.3d 140(A) (App. Term 1st Dept. 2009) ...................... 5,7,14 People v. Tapia, 197 A.D.2d 370 (1st Dept. 1993) ........................................................... 14 People v. Winbush, 199 A.D.2d 447 (2d Dept. 1993) ................................................. 7, 14 STATE STATUTES CPL 220.60(3) ....................................................................................................................... 4 CPL 440.10 ............................................................................................................................... 4 Penal Law § 70.00(2) ............................................................................................................... 8 Penal Law § 70.15(1) ............................................................................................................... 8 Penal Law § 80.05(1) ............................................................................................................... 8 -111- Penal Law § 230.20(1) .......... "., .... " ..... , ............... " ... , .............................................................. 1 Penal Law § 230.25(1) .. , ............................................... "" ............... " ..... , .... ", ....... " ... ,."""., ... 2 -lV- SUPREME COURT OF THE STATE OF NEW YORI<: APPELLATE TERM: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- STEPHEN PELLEGRINO, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUC110N Defendant Stephen Pellegrino appeals from a February 24, 2011, judgment of the New York City Criminal Court (Jennifer Schecter, J.), convicting him upon his plea of guilty, of Promoting Prostitution in the Fourth Degree (penal Law § 230.20[1 D. Defendant was sentenced to pay a fine of $250, which he paid. On February 16, 2011, an undercover officer entered the second floor of a huilding at West 14th Street in Manhattan and met with defendant. During their conversation, defendant told the undercover t..~at pis "most experienced girl Candy will be in on Friday." The undercover returned two days later. Defendant greeted him again, told him that Candy was there, and announced the price as «$50 pet' person, plus tip. A hand job is included in the price. \"ou each get your own girl." The undercover agreed to pay that price. Defendant was subsequently arrested and a stack of business cards was fOWld in his jacket. By a felony complaint filed on February 19, 2011, under Docket Number 2011NY012705, defendant was charged with Promoting Prostitution in the Third Degree (penal Law § 230.25[1]). On February 24, 2011, defendant appeared before the Honorable Jennifer Schecter, waived his right to be prosecuted by an information, and pled guilty to fourth-degree promotion of prostitution, in full satisfaction of the accusatory inStiument. In exchange, defendant received the promised sentence of a $250 fine. Defendant was sentenced as noted above. On appeal, defendant argues that his guilty plea was invalid. THE PLEA AND SENTENCING PROCEEDING On Febrmuy 24, 2011, defendant appeared wid1 his attorney, Henry Wei], Esq., before Judge Schecter. The People alerted the court that, due to defendant's "lack of criminal record," d1ey had offered to dismiss d,e felony charge and would allow him to plead guilty to fourth-degree promotion of prostitution in exchange for the sentence of a $250 fine or five days' commwllty service (p: 2)1 Counsel infoffi1ed the court thal, having cOl1ferred with defendant over the past "LW'O days, he understood d,at defendant wanted to accept the People's offer, plead guilty, and pay the fine (P: 2). Accordingly, the People Inade a monon to reduce the count in the complaint to 1 Parenthetical references preceded by «P" arC to the Februaly 24, 2011 plea and sentencing proceeding. -2- the misdemeanor of fourth-degree promotion of prostitution, which the court granted (p: 2). Counsel told the court that defendant would waive his light to be prosecuted by an information (p: 3). Counsel also told the court that there was no reason to go into the immigration consequences of a guilty plea, since defendant was a United States citizen (p: 2). The court then addressed defendant directly. First, the judge asked defendant if he indeed wanted to plead guilty to fourth-degree promotion of prostitution, as his attorney had indicated, even though it was a misdemeanor and would add to his criminal recotd (I': 3). Defendant responded, "Yes, your honor" (p: 3). The court asked defendant if he was pleading guilty of his own free will, and defendant said, "Yes" (P: 3). The judge also asked defendant if he was pleading guilty because he was guilty of that crime, and defendant said, "Yes, your Honor" (p: 3). The court asked defendant if he wanted to say anything before the sentence was imposed, and defendant said "No" (p: 3-4). The court then accepted the plea and imposed the $250 fine (p: 4). ·3· POINT DEFENDANT FAILED TO PRESERVE HIS COMPLAINTS ABOUT HIS GUILTY PLEA. IN ANY EVENT, HE PLED GUILTY VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY (Answering Defendant's Brief). On appeal, defendant argues, for the fixst time, that his guilty plea must be vacated and the charge dismissed, because his guilty plea was not knowingly and voluntarily made. Specifically, defendant complains that the court's colloquy was inadequate because it did not inform him of the trial rights he was waiving by virtue of his guilty plea (Defendant's Brief: 4-8). Defendant further contends that the court erred by not eliciting a factual allocution from him (Defendant's Brief: 8-11). Defendant's claims are unpreserved and unavailing. A. At the outset, defendant's complaints about his plea allocution are unpreserved. To preserve a challenge to the sufficiency of a plea allocution, a defendant must move to withdraw the plea pursuant to CPL section 220.60(3), or move to vacate the judgment of conviction pursuant to CPL section 440.10. See People v. Lopez, 71 N.Y.2d 662, 665-66 (1988); People v. Gram, 54 A.D.3d 589, 590 (1st Dept. 2008); People v. Perez, 214 A.D.2d 356, 356 (1st Dept 1995). Doing so affords the trial COU1i: ;'an opportunity to correct any errol: in the proceedings below at :it time when the issue can be dealt with most effectively." Lopez, 71 N.Y.2J at 665. -4- Here, defendant neither moved to withdraw his plea nor vacate the judgment of conviction on the grounds that the court did not adeql.lately infonn of his constitutional rights or require that he make a factual allocution. This Court has consistently found defendants' claims unpreserved under similar circumstances. See People v. Sullivan, 25 Misc.3d 140(A) (App. Term 1st Dept. 2009) ("Since defendant did not move to withdraw his guilty pIca, and since this case does not come within the narrow exception to the preservation requirement) his challenge to the validity of the plea is unpreserved''); People v. Bell, 25 Misc.3d 131(A) (App. Term 1st Dept. 2009) (same); People v. Daley, 23 Misc.3d 145(A) (App. Term 1st Dept. 2009) (same). Thus, his claim cannot be reviewed on appeal as a question of law. See Lopez, 71 N.Y.2d at 665; see also People v. Rodrigyez, 83 AD.3d 449, 449 (1st Dept. 2011); Bell, 25 Mise.3d 131(A)2 Apparently recognizing that his attacks on the plea allocution are unpreserved, defendant cites a series of cases to demonstrate that New York courts "have 2 A "narrow exception" to this preservation requirement is found in the "l-are case" where the plea allocution "clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea." ~, 71 N.Y.2d at 666; see also People v. Moultrie, 29 Mise.3d 135(A) (App. Tetm 1st Dept. 2010). However, this exception is triggered only where the defendant makes an affIrmative statement that clearly casts doubt upon the validity of his plea. See People v. Negron, 222 A.D.2d 327, 327 (1st Dept. 1995) ("It is of no moment that the plea court was aware that defendant';:; post arrest statements raised a justification defense, since defendant did not reiterate those statements at his plea allocution."). Here, defendant did not make any such statements. Therefore, this mrrow exception docs not apply to this case. rd.; People v. Rabi, 7 A.D.3d 468, 468 (1st Dept. 2004). -5- repeatedly vacated guilty pleas under similar circumstances, even when the claim is unpreserved (Defendant's Brief: 6, citing, People v. Gibson, 54 AD.3d 350 [2d Dept. 2008]; People v. Aleman, 43 AD. 3d 756, 757 [1st Dept. 2007]; People v. Colon, 42 AD.3d 411, 412 [1st Dept. 2007]; People v. Diaz, 97 AD.2d 851 [2d Dept. 1983]; People v. Smith, 2002 NY Slip Op 40288U [App. TenTI 9th and 10th Dist. 2002]). However, none of the cases that defendant cites is apt Indeed, all of them involve special circumstances not present here. See Gibson, 54 AD.3d at 350 (not clear from the record if the defendant understood "what the plea connoted and its consequences"); Aleman, 43 AD.3d at 756-57 (the defendant made "numerous assertions of innocence" and stated that he was "not exactly guilty"); Colon, 42 AD.3d at 411 (involved serious felony charges in which the defendant pled guilty to two counts of rape and two counts of sodomy without being advised of any of the trial rights he forfeited); Diaz, 97 AD.2d at 851 (the defendant submitted a "notice of alibi" and made a "protestation of innocence"); Smith, 2002 NY Slip Op 40288U, at 2 (court did not address the defendant, since "all conversations took place between defense counsel and the Bench"). B. In any case, defendant's plea was entirely valid. A guilty plea will be upheld if the defendant entered it knowingly, intelligenrly, and voluntarily. See Bradshaw v. Stumpf, 545 US. 175, 183 (2005); Boykin v. Alab,una, 395 U.S. 238, 243 (1969). The record must reflect tllat the defendant has waived his privilege agmnst self~ -6- incrimination and his cOl1stirutional rights to a trial by jury and to confront adverse witnesses. Boykin, 395 U.S. at 243. However, "a detailed articulation and waiver of the three rights mentioned in Boykin is not constirutionally mandated.'1 People v. Harris, 61 N.Y.2d 9, 19 (1983). After ail, "[nJowhere in its opinion did the [!loykin] court mandate an inquiry concerning the three ... so-called Boykin rights." rd. Nor is the plea invalid simply because the court did not have the defendant formally allocute to the facts of the crime. See Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984); Bell, 25 Misc. 3d 131(A). Rather, "a plea of guilty will be sustained in the absence of a factual recitation of the underlying circumstances if there is no suggestion that the plea of guilty was improvident or baseless." See People v. Winbush, 199 AD.2d 447, 448 (2d Dept. 1993); see also Sullivan, 25 Misc.3d 140(A); Bell, 25 Misc.3d 131 A. Indeed. "[t]here IS no reqwrement for a uniform mandatory catechism of pleading defendants." Harris, 61 N.Y.2d at 16 (quoting People v. Nixon, 21 N.Y.2d 338, 353 [1967], cm. denied, 393 U.S. 1067 [1969]); see also People v. Seeber, 4 N.y'3d 780, 781 (2005). Rather, the precise contours of a plea allocution are left to the sound discretion of the plea court. See People v. Francis, 38 N.Y.2d 150, 153 (1975); see also Harris, 61 N.Y.2d at 17. In exercising tlns discretion, tl,e court should consider ('the seciousnes-s of the crime, the competency, experience, and actual participation by counsel, the rationality of the