The People, Respondent,v.Stephen Pellegrino, Appellant.

Brief

N.Y.October 20, 2015

:: Af'L - ;U) I 5"- 000 12. ~ _. r' ~,;,-,nt--"l - ",-... - ,.; ; -:,.J" ~ ~ Tu be submitted by JOANNE LEGANO ROSS NEW YORK SUPREME COURT ApPELLATE TERM - FlRST JUDICIAL DISTRICT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- . " .' , " New York County Doel,c! # 2011NY0127t15 STEPHEN PELLEGRINO, Defendant-Appelbmt. = BRIEF FOR DEFENDANT-APPELLANT JOANNE LEGANO ROSS O(C(lumel November 2012 STEVEN BANKS Attorney for Defcndant- Appellant 199 Water Street New York, New Yark 10038 212-577-3688 TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................... i STATEMENT PURSUANT TO RULE 640.3(c) ........................................... 1 PRELIMINARY STATEMENT .................................................................... 1 QUESTION PRESENTED .............................................................................. 2 STATEMENT OF FACTS ............................................................................. 2 The Plea and Sentence Proceedings ............................................................... 2 ARGUMENT THE RECORD WAS INSUFFICIENT TO SHOW THAT APPELLANT'S PLEA WAS KNOWING AND VOLUNTARY, SINCE HE WAS NEVER INFORMED ABOUT ANY OF I-lIS BOYKIN RIGHTS AND HE MADE NO FACTUAL ALLOCUTION. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6 .................................................................. 4 CONCLUSION ............................................................................................. 11 STATEMENT PURSUANT TO RULE 5531 ............................ , ................ 12 TABLE OF AUTHORITIES CASES Federal Boykin v. Alabama, 395 U.S. 238 (1969) ................................................... .4,5 Hanson v. Phillips, 442 F.2d 789 (2d Cir. 2006) ............................................................................................... .5,7 Henderson v. Morgan, 426 U.S. 637 (1976) ................................................... 8 People v. Aleman, 43 A.D.3d 756 (1st Dept. 2007) .......................................................................................... 6,10 People v. Burwell, 53 N.Y.2d 849 (1981) ..................................................... 11 People v. Colon, 42 AD.3d 411 (1st Dept. 2007) .......................................................................................... 6,10 People v. Davis, 71 N.Y.2d 1002 (1988) ......................................................... 9 People v. Demonde, III A.D.2d 867 (2dDept. 1985) .............................................................................................. 10 People v. Diaz, 97 AD.2d 851 (2d Dept. 1983) ........................................................................................... 6,10 People v. Flynn, 79 N.Y.2d 879 (1992) ......................................................... 11 People v. Gibson, 54 A.D.3d 350 (2d Dept. 2008) ........................................................................................... 6, 11 People v. Gillard, 111 A.D.2d 666 (1st Dept. 1985) ............................................................................................... 9 -1- People v. Harris, 61 N.Y.2d 9 (1983) ........................................................... 5,7 People v. Lopez, 71 N.Y.2d 662 (1988) .......................................................... 8 People v. Makas, 273 A.D.2d 510 (3d Dept. 2000) ................................................................................................ 9 People v. Moore, 71 N.Y.2d 1002 (1988) ....................................................... 8 People v. Nixon, 21 N.Y.2d 338 (1967) .......................................................... 5 People v. Smith, 2002 Slip Op. 40288 (App. Tenn 9th & 10th Dist. 2002) ................................................................. 6 CONSTITUTIONAL PROVISIONS U.S. Canst., Amend. XIV ............................................................................. 2,4 N.Y. Canst., Art. J, §6 ................................................................................... 2,4 STATUTES P.L. § 220.03 ................................................................................................ 1,2 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: FIRST DEPARTMENT ------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- STEPHEN PELLEGRINO, Defendant-Appellant. -------------------------------------------------------------------)( STATEMENT PURSUANT TO RULE 640.3 (c) Upon information and belief, appellant is currently at liberty, having paid tl,e fine imposed pursuant to the judgment herein appealed. PRELIMINARY STATEMENT This is an appeal from a judgment of Criminal Court, New York County, rendered February 24, 2011, convicting appellant, upon a guilty plea, of promoting prostitution in the fowth degree, PL. § 230.20, and sentencing him to pay a fme of $250.00 (Schechter, J., at plea and sentence). Notice of appeal was deemed timely filed, and on August 24, 2011, this Court granted appellant leave to appeal as a poor person and assigned Steven Banks as counsel on appeal. No application has been made for a stay of execution - 1 - of this judgment. On information and belief, appellant is at libeJ1y, having paid the fine pursuant to the judgment herein appealed. QUESTION PRESENTED Whether the record was insufficient to show that appellant's plea was knowing and voluntary since he was never informed about any of his Boykin rights and he made no factual allocutiolL U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6. STATEMENT OF FACTS The Plea and Sentence Proceedings Appellant was charged in a felony complaint, later reduced to a misdemeanor complaint, with promoting prostitution in the fOUJ1h degree, P.L. § 230.20, based on allegations that on February 18,2011, at 9:30 p.m., inside of West 14'h Street in Manhattan, he knowingly advanced and profited fi'om prostitution by managing a prostitution business involving prostitution activity by two or more prostitutes (Complaint, dated February 19, 20 ll). During the plea allocution, the court did not advise appellant about any of his Boykin rights that he was waiving by pleading guilty, nor is there anything in the record to suggest that appellant discussed these rights with his attorney. Also, appellant did not make a factual allocution to the crime. The following colloquy occurred: [THE PROSECUTOR]: Your Honor, there also has not been any grand jury action. The People's offer is an A misdemeanor, promoting prostitution - 2- III the fourth degree, [p.L. §] 230.20 with a $250 fine or five days' community service. [DEFENSE COUNSEL]: Your Honor, I have conferred on this matter with my client over the past two days, he will plead guilty to the misdemeanor and will be requesting the fine .... [THE PROSECUTOR]: The People are moving to reduce the sole count of the complaint to 230.20, promoting prostitution in the fourth degree and the reason for this reduction is ... the defendant's lack of a criminal record. THE COURT: Have you infonned your client of any potential immigration consequences this plea may have? [DEFENSE COUNSEL]: He is a U.S. citizen, so we don't need to. THE COURT: Do you waive prosecution? [DEFENSE COUNSEL]: Yes. THE COURT: And time to pay the fine and surcharge? [DEFENSE COUNSEL]: We are requesting that, yes. THE COURT: Mr. Pellegrino, your attomey tells me you want to plead guilty to violating Penal Law Section 230.20, that is promoting prostitution in the fourth degree, it is a misdemeanor and it will add to your criminal record. Is that what you want to do? [APPELLANT]: Yes, your Honor. THE COURT: Are you pleading guilty of your own free will? [APPELLANT]: Yes. THE COURT: Are you pleading guilty because you are guilty of the charge? [APPELLANT]: Yes, your Honor. - 3 - THE COURT: And is there anything you want to say before sentence is imposed? [APPELLANT]: No, your Honor. THE COURT: Sentence of the Court is a $250 fine. There is also a $200 mandatOlY surcharge. You must pay that amount on or before Apri12, 2011 at the Cashier's Part of this courthouse. (2-4).1 There was no further colloquy conceming either the plea or sentence. ARGUMENT THE RECORD WAS INSUFFICIENT TO SHOW THAT APPELLANT'S PLEA WAS KNOWING AND VOLUNTARY, SINCE HE WAS NEVER INFORMED ABOUT ANY OF IDS BOYKIN RIGHTS AND HE MADE NO FACTUAL ALLOCUTION. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6. The record in this case does not establish that appellant entered his guilty plea knowingly and voluntarily. The court failed to explain any of the fundamental Boykin rights that appellant was waiving by pleading guilty, nor is there anything in the record to suggest that he ever discussed these rights with his attomey. The Boykin Rights Because a guilty plea involves the waiver of several impOltant constitutional rights, the record must affinnatively show that the defendant pled guilty knowingly 1 Numbers in parentheses refer to the pages of the plea and sentencing transcript dated February 24, 2011. - 4- and voluntarily. Boykin v. Alabama, 395 U.S. 238,242-43 (1969). These rights, known as Boykin rights, include the privilege against self-incrimination, the light to a jury trial and the right to confront one's accusers. Id.; People v. Hanis, 61 N.Y.2d 9, 17 (1983). The Boykin showing does not oblige the court to recite "a unifonu mandatory catechism" of rights waived before accepting the plea. People v. Nixon, 21 N.Y.2d 338, 353 (1967). Yet, neither will a "silent record" overcome the presumption against waiver by a defendant of constitutionally guaranteed protections. People v. Harris, 61 N.Y.2d at 17. ("Presuming waiver from a silent record is impennissible. The record must show ... that an accused intelligently waived and understandingly rejected [his constitutional rights]. Anything less is not a waiver"). The Second Circuit reaffirmed these principles in Hanson v. Phillips, 442 F 3d 789 (2d Cir. 2006). In that case, the defendant pled gUilty and, during the plea allocution, he admitted committing the offense for which he was being charged. Nevertheless, the court found "the record deficient in establishing both the defendant's understanding of the immensely important procedural step he was taking and that he was acting voluntarily." Id. at 799. The court pointed out tlmt nothing in the record "affirmatively disclosed" his awareness of his fundamental right to a trial and that he voluntarily chose to plead guilty. Id. It explained that the plea could not be intelligent unless "at the very least, the defendant understands - 5- that, by pleading guilty, he gives up that right and consents to the entry of a gnilty verdict, upon which he may be sentenced." [d. Moreover, the court ruled that evidence of the defendant's criminal history, which included a prior guilty plea, did not establish affIrmative evidence that appellant knowingly, voluntarily, and intelligently, entered his guilty plea. Id. at 800. New York state courts have repeatedly vacated guilty pleas under similar circumstances, even when the claim is unpreserved. See, e.g., People v. Gibson, 54 A.D.3d 350 (2d Dept. 2008) (plea vacated where "the court failed to apprise the defendant that he was giving up any rights upon entering the plea, such as the right to jury trial, the right to confront his accusers, and the privilege against self- incrimination"); People v. Aleman, 43 A.D.3d 756, 757 (1st Dept. 2007) (although defendant never moved to withdraw his guilty plea, plea vacated where the court failed to inform defendant of any of the rights he was waiving by his plea); People v. Colon, 42 A.D.3d 411, 412 (1st Dept. 2007) (although defendant did not move to withdraw his plea, Appellate Division vacated plea in the interest of justice "since the plea allocution was so woefully deficient" as the court never infOlmed defendant about his Boykin rights); People v. Diaz, 97 A.D.2d 851 (2d Dept. 1983) (plea vacatur in the interest of justice where "the court failed to apprise defendant that by pleading guilty he was waiving his privilege against self incrimination and his right of confrontation"); People v. Smith, 2002 N.Y. Slip Op. 40288 (App. ·6- Term 9th and 10th Dist. 2002) (plea conviction reversed on the law and in the interest of justice where there was "no showing of a knowing and intelligent waiver by defendant of his constitutional rights"). Here, too, appellant's conviction should be reversed, as the trial court did not inform appellant about any of the Boykin rights that he was waiving by pleading guilty. In fact, there was not even an allusion to the right to go to trial or any other trial rights. The record is utterly deficient as to any affirmative showiog of the necessary understanding on appellant's part - the court never so much as uttered the word "trial." Thus, the facts here are even more compelling than in Hanson, 442 F.3d at 792, where the court did, albeit not carefully, explain to the defendant that her alternative to tal