People v. Di Raffaele

• Decision Date: 23 February 1982
• Citation: 433 N.E.2d 513,55 N.Y.2d 234,448 N.Y.S.2d 448
• Parties: , 433 N.E.2d 513 The PEOPLE of the State of New York, Respondent, v. Rosario S. DI RAFFAELE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 448

448 N.Y.S.2d 448

55 N.Y.2d 234, 433 N.E.2d 513

The PEOPLE of the State of New York, Respondent, v. Rosario S. DI RAFFAELE, Appellant.

Court of Appeals of New York.

Feb. 23, 1982.

Bernard Ulano and Aaron Nussbaum, New York City, for appellant

Patrick Henry, Dist. Atty. (Charles M. Newall, Riverhead, of counsel), for respondent.

Robert Abrams, Atty. Gen. (Lew A. Millenbach and Shirley Adelson Siegel, Asst. Attys. Gen., of counsel).

OPINION OF THE COURT

JONES, Judge.

Defendant's conditional plea of guilty to criminal usury in the second degree under section 190.40 of the Penal Law having been premised on an ineffectual assurance of the prosecutor, approved by the court, that, notwithstanding his plea, defendant could reserve his right to appellate review with respect to his contentions that section 190.42 of the Penal Law (criminal usury in the first degree) was unconstitutional and that the indictments should be dismissed for preindictment prosecutorial misconduct, defendant should be permitted to withdraw his plea and his conviction based thereon should accordingly be vacated. Additionally, there is no merit to defendant's further contentions that his motion to suppress certain telephone toll-billing records was improperly denied or that his retrial is barred under constitutional double jeopardy principles.

Defendant was charged in two indictments with 12 counts of criminal usury in the first degree under section 190.42 of the Penal Law. He made an omnibus motion and then a supplemental motion in which he sought, inter alia, suppression of toll-billing records of his home telephone number and of the telephone number of Cecilia De Witt, a friend whose telephone he used to make and receive calls, and dismissal of the indictments on the ground that section 190.42 is unconstitutionally vague and overbroad. His motions in these respects were denied, and, on renewal of the motion to declare the statute unconstitutional, the court again denied the motion to dismiss. A further pretrial motion to dismiss the indictments on the ground of preindictment prosecutorial misconduct was also denied.

The action proceeded to trial which ended when the trial court granted defendant's motion for a mistrial based on prosecutorial improprieties in the course of the summation for the People.

Defendant then brought a proceeding under CPLR article 78 to prohibit a second trial on double jeopardy grounds. The relief sought was denied on the merits and the proceeding dismissed at the Appellate Division. Defendant appealed as of right on constitutional grounds, but we granted the People's motion to dismiss the appeal on the ground that no substantial constitutional question was directly involved (48 N.Y.2d 974, 425 N.Y.S.2d 1030, 401 N.E.2d 434).

Thereafter defendant pleaded guilty to a single count of the crime of criminal usury in the second degree under section 190.40 of the Penal Law in satisfaction of all the counts in the two indictments. As part of his plea, with the express consent of the prosecutor and approval of the court, defendant explicitly reserved the right to appeal with respect to four rulings: denial of his motion to dismiss the indictment on the ground that section 190.42 of the Penal Law is unconstitutional; denial of his motion to suppress the toll-billing records of his home telephone and that of his friend; denial of his motion to dismiss the indictment on the ground of preindictment prosecutorial misconduct, and denial of his application to dismiss the indictment on constitutional double jeopardy grounds.

On appeal the Appellate Division affirmed the judgment of conviction of criminal usury in the second degree, without opinion (79 A.D.2d 686, 435 N.Y.S.2d 617).

We now reverse the order of the Appellate Division, hold the purported reservation of rights to appeal ineffectual, vacate the plea, and remit the matter to the trial court for further proceedings on the indictments.

At the threshold we focus our attention on the reservation by defendant of his right to appeal with respect to the four stipulated rulings on which his plea was conditioned. We observe that with respect to two of such rulings no such reservation was required. The right to appellate review of the denial of his suppression motion is statutorily preserved to defendant (CPL 710.70, subd. 2), and that right is not diluted by what otherwise might be an ineffective attempt at preservation, an attempt which in view of the express statutory provision should be deemed immaterial surplusage. Similarly, but in this instance in consequence of controlling decisional law, the constitutional right not to be subject for the same offense to be twice put in jeopardy (U.S.Const., 5th Amdt.; N.Y.Const., Art. I, § 6) is not waived or forfeited by a guilty plea (Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195). Again, this principle is not affected by an unnecessary attempt at explicit preservation.

We turn then to the other two rulings as to which defendant ought to preserve his right to appellate review, notwithstanding his guilty plea. Reservation of such right with respect to the denial of his motion to dismiss the indictments on the ground of preindictment prosecutorial misconduct is precluded under the principles of forfeiture of the right to appellate review explicated in our recent decision in People v. Thomas, 53 N.Y.2d 338, 441 N.Y.S.2d 650, 424 N.E.2d 537. It is true that the precise issue sought to be preserved in Thomas was the legal sufficiency of the evidence to sustain the charge against the defendant; we held appellate challenge on that ground to be inconsistent with defendant's admission, explicit in his guilty plea, that he had committed the crime with which he was charged. Similarly, and perhaps even more evidently, where defendant has by his plea admitted commission of the crime with which he was charged, his plea renders irrelevant his contention that the criminal proceedings preliminary to trial were infected with impropriety and error; his conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial (People v. Lynn, 28 N.Y.2d 196, 201, 321 N.Y.S.2d 74, 269 N.E.2d 794). The rationale and objective of appellate reversal of a trial conviction because of misconduct on the part of a prosecutor is not to discipline or punish the prosecutor but to protect the rights of the defendant and to assure that his conviction has not been accomplished by impermissible means. This rationale and...