People v. Maietta

• Decision Date: 24 December 1991
• Citation: 173 A.D.2d 17,578 N.Y.S.2d 529
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael MAIETTA, a/k/a Michael Maletta, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 529

578 N.Y.S.2d 529

173 A.D.2d 17

The PEOPLE of the State of New York, Respondent, v. Michael MAIETTA, a/k/a Michael Maletta, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 24, 1991.

David H. Fromm, New York City, of counsel (Polatsek and Fromm, attorneys), for defendant-appellant.

Daniel S. Ratner, New York City, of counsel (Billie Manning with him, on the brief, Robert T. Johnson, District Atty., attorney), for respondent.

Before SULLIVAN, J.P., and MILONAS, ROSS, ASCH and SMITH, JJ.

ROSS, Justice.

The appeal before us presents the issue of whether Criminal Term can enhance a sentence, when a defendant breaches a specific condition of a plea negotiation, by his re-arrest.

Between September 1990 and January 1991, Bronx County Grand Juries filed four separate indictments against defendant, and others, charging them with the commission of the felony crimes of burglary in the second degree (Penal Law (PL) § 140.25) (four counts), burglary in the third degree (PL § 140.20) (three counts), possession of burglar's tools (PL § 140.35) (two counts), criminal possession of stolen property in the third degree (PL § 165.50), criminal possession of stolen property in the fourth degree (PL § 165.45) (three counts), criminal mischief in the second degree (PL § 145.10), criminal mischief in the third degree (PL § 145.05) (three counts), grand larceny in the fourth degree (PL § 155.30), attempted grand larceny in the third degree (PL §§ 110.00/155.35), and related misdemeanor crimes.

The People allege that those four indictments deal with the activities of a burglary ring, in which the defendant "was allegedly the so-called ring master ... [This] group of burglars included childhood friends and family members ... This was allegedly not a rinky-dink organization. These burglaries were planned in advance ... The burglars were equipped with police scanners so as to monitor police frequencies before the burglaries were committed. The police would receive calls on the 911 phone misdirecting them to go to other locations ..." (see, Record on Appeal, at 61-62) [material in brackets added].

Subsequent to arraignment, and after consultation with counsel, defendant knowingly and voluntarily pleaded guilty to a single felony count under each one of the four indictments, in full satisfaction of those indictments.

The details of defendant's four pleas, in substance are:

First, defendant pleaded guilty to the crime of criminal possession of stolen property in the third degree, a class D felony, under indictment number 6251/90, and admitted that, on or about June 26, 1990, at about 10:00 p.m., inside a private house, located at 2407 Esplanade Avenue, Bronx County, he possessed motorcycle helmets, stereo and phone equipment, and jewelry, all of which he knew had been stolen, and which he had not been given permission or authority to possess.

Second, defendant pleaded guilty to the crime of attempted burglary in the third degree, a class E felony, under indictment number 6820/90, and admitted that, on or about August 24, 1990, at about 2:00 a.m., he entered a cigarette warehouse, located at St. Ann's Avenue, Bronx County, and stole property located in said warehouse.

Third, defendant pleaded guilty to the crime of attempted burglary in the third degree, a class E felony, under indictment number 9570/90, and admitted that, on or about November 15, 1990, at about 3:20 p.m., he entered a building, located at 727 Throgs Neck Expressway, Bronx County, and stole certain property in that building.

Fourth, defendant pleaded guilty to the crime of burglary in the third degree, a class D felony, under indictment number 10082/90, and admitted that, on or about November 12, 1990, at about 3:00 a.m., together with Mr. Alfio Occhino, he entered premises, located at 1611 East 233rd Street, Bronx County and he stole cash, a Deli scale and cigarettes.

In exchange for defendant's four felony pleas of guilty, Criminal Term agreed to impose a sentence of four to eight years, and to permit defendant to remain on bail until sentence was imposed, upon the conditions that defendant not be arrested again, between the time of the plea and the date of sentence, he cooperate with the Probation Department, and he appear for sentence.

The following colloquy took place between Criminal Term and the defendant concerning the fact that if defendant was arrested again before the date of sentence, the sentence would be enhanced (see, Record on Appeal (RA), at 50-51):

"THE COURT: You are a professional burglar, sir, so if you don't get out of your profession and you get arrested again, instead of ... being four to eight, I will give you a total time in jail which will come to 22 years in jail, do you understand that?

DEFENDANT ...: Yes.

THE COURT: You will not be permitted to withdraw your ... pleas of guilty, you will not be permitted to go to trial, you will just get an enhanced sentence of 22 years in State's prison, do you understand?

DEFENDANT ...: Yes, sir.

THE COURT: Do you want to ask me any questions?

DEFENDANT ...: No, sir.

THE COURT: Of course if you appear and don't get arrested I will give you four to eight.

DEFENDANT ...: Yes."

After accepting the pleas, Criminal Term adjudicated defendant, without objection, a predicate felony offender, upon the basis of a Judgment, Supreme Court, Queens County, entered December 3, 1985, which convicted him of the crime of grand larceny in the second degree, and for which he was sentenced to an indeterminate prison term of two to four years.

Before adjourning the plea proceeding, and continuing defendant on bail, until the date of sentence, Criminal Term once more warned defendant: "you get arrested again, not convicted but arrested again, you face significant time in jail ..." (see, RA, at 57). When the Court asked him if that warning was clear, defendant unequivocally answered: "Yes" (see, RA, at 58).

Thereafter, on May 2, 1991, when the defendant appeared for sentencing, the People requested Criminal Term to impose the enhanced sentence, since defendant had breached the no-arrest condition of the plea negotiation, by being arrested as well as indicted for a burglary committed in Yonkers, on or about March 28, 1991, which date was approximately seventeen days after he had entered his pleas of guilty to the four indictments. The People submitted to Criminal Term a copy of the Westchester County indictment, charging that defendant, acting in concert with another unnamed person, committed the crimes of burglary in the second degree (PL § 140.25), criminal trespass in the second degree (PL § 140.15), and criminal mischief in the fourth degree (PL § 145.00).

It is undisputed that, in the Westchester County burglary case, inter alia, a person, who emerged from a jeep owned by defendant, allegedly attempted to kick in the door of a residence, and thereafter that person fled, with no one being arrested at the scene. Further, it is also undisputed that the police traced the ownership of the jeep back to defendant, and that a Yonkers police officer, who observed the fleeing jeep, subsequently identified defendant, from a photograph, as its driver.

Defense counsel contended that, since defendant claimed that he was innocent of the crimes committed in Westchester County, the sentence should not be enhanced. In support of that position, defense counsel offered a handwritten unsworn statement of Mr. Anthony Salveggi, who alleged that he drove the jeep in the Westchester incident, and that his passenger was Mr. Occhino, who he accused of committing the crime in issue.

We note in passing that, as discussed supra, in defendant's plea of guilty to the crime of burglary in the third degree, in satisfaction of Bronx indictment number 10082/90, he admitted that he committed that crime with the said Mr. Occhino.

After hearing defense counsel's argument, Criminal Term rejected same, and held that, in accordance with the terms of the plea negotiation, it was going to enhance the sentence, based upon defendant's new arrest. In pertinent part, Criminal Term explained (see, RA 90-91): "in this case not only was the defendant arrested but he was subsequently indicted so that there is an additional filter (sic) for the quality of the arrest, and ... he was arrested and indicted for things that he does professionally, burglary ... The condition of the promise was fully and completely and clearly discussed ... [Defendant's] plea was intelligently and knowingly and freely and voluntarily entered at that time with the conditions ..." [material in brackets added].

Subsequently, upon the basis of defendant's previously entered pleas of guilty, Criminal Term sentenced him, as a second felony offender, to two indeterminate terms of imprisonment of from three and one-half to seven years for the crimes of criminal possession of stolen property in the third degree and burglary in the third degree, and to two indeterminate terms of imprisonment of from one and one-half to three years for the crime of attempted burglary in the third degree (two counts). Since Criminal Term directed that the four sentences run consecutively, the minimum term is ten years and the maximum is twenty years. Defendant appeals.

Defendant contends, in substance, that Criminal Term erred in imposing an enhanced sentence, since he denied any involvment in the Westchester crimes.

Pursuant to Criminal Procedure law (CPL) § 220.10, subdivision 4(b), a defendant, such as the instant defendant, who is faced with a number of indictments, containing a number of felony counts, "may, with both the permission of the court and the consent of the people, enter a plea of guilty of a lesser included offense." The "guilty plea telescopes the judicial process and the necessarily protracted intervals involved in charge, trial and sentence, and even appeals, hopefully starting the offender on the road to possible rehabilitation...