People v. Outley

Decision Date16 February 1993
Parties, 610 N.E.2d 356 The PEOPLE of the State of New York, Respondent, v. Willie OUTLEY, Appellant. The PEOPLE of the State of New York, Respondent, v. Michael MAIETTA, Also Known as Michael Maletta, Appellant. The PEOPLE of the State of New York, Respondent, v. Jose OGTONG, Appellant.
CourtNew York Court of Appeals Court of Appeals

Lee D. Greenstein, Albany, for appellant in the first above-entitled action.

Richard A. Brown, Dist. Atty. of Queens County, Kew Gardens (Robin A. Forshaw, Barbara D. Underwood and Daniel J. O'Reilly, of counsel), for respondent in the first and third above-entitled actions.

Thomas M. O'Brien, New York City, for The Legal Aid Soc., amicus curiae, in the first above-entitled action.

Proskauer Rose Goetz & Mendelsohn, New York City (Steven C. Krane and Bruce G. Hart, Jr., of counsel), for appellant in the second above-entitled action.

Robert T. Johnson, Dist. Atty. of Bronx County, Bronx (Daniel S. Ratner and Peter D. Coddington, of counsel), for respondent in the second above-entitled action.

Richard Sweren, New York City, for appellant in the third above-entitled action.

OPINION OF THE COURT

HANCOCK, Judge.

In these cases, the courts, in accepting guilty pleas, expressly conditioned the agreed-upon sentences on defendants not being arrested while on release awaiting sentence. Defendants, although arrested on additional charges prior to their sentencing dates, specifically denied the commission of any criminal acts and claimed that there was no basis for their arrests. Despite their denials, defendants were given sentences substantially greater than stipulated in the conditional plea bargains.

Defendants' appeals present this question: when a court has made a plea bargain containing a no-arrest condition and the defendant is arrested prior to sentencing for an act which is denied, what basis for the arrest must be shown in order for the court to be relieved of its obligation to impose the bargained-for sentence? For reasons to be explained in our discussion of this question, we conclude in each case that the basis for the arrest developed on the record by the court before it imposed sentence was sufficient to establish a failure of the no-arrest condition. Accordingly, there should be an affirmance of each order.

People v. Outley

On January 22, 1990, defendant pleaded guilty to endangering the welfare of a child in satisfaction of charges that he had sexually abused his 13-year-old daughter. At the time of the plea, the court agreed to sentence defendant to a period of probation not to exceed three years provided that defendant "not be arrested on any other charges during [the] adjournment period." The court stated to defendant: "If you violate any of these conditions, I will not be bound by my promise, and I will be free to sentence you to whatever the case allows, in this case, up to one year in prison. Do you understand that?" Defendant replied, "Yes". The court scheduled sentencing for March 8, 1990 and released defendant on his own recognizance until that date.

When defendant appeared for sentencing on March 8, it was revealed that he had been arrested on February 26, on a charge of criminal contempt (Penal Law § 215.50[3] for violating two court orders--an order of Queens County Criminal Court and Queens County Family Court--both directing him to stay away from his wife and daughter and their residence. Defendant's counsel advised the sentencing court that although her client had visited his former home while his wife and daughter were present he "didn't have the requisite criminal intent to defy [the orders]" to constitute a criminal contempt.

Defendant explained that he had stopped at his former home to pick up some papers he needed for a forthcoming Federal court legal proceeding. Before going there, he said, he talked with his wife who told him he could "come back and get the papers"; his violation of the orders "was not done with malice", he claimed, and "there was no bad intent whatsoever". Defense counsel argued that a hearing was necessary to determine whether it could be shown "by a preponderance of evidence that the defendant" had, in fact, "committ[ed] the crimes that are the gravamen of the new arrest" and that without "an evidentiary hearing" the court lacked power to impose the enhanced sentence. The court replied that what defense counsel was doing "right [then]" was "giving [defendant's] side at a hearing as to why he was there". Moreover, the court noted, defendant's wife or the person concerned had called the police and his wife had signed a sworn affidavit attesting to the allegations in the criminal contempt complaint, "indicating she want[ed] [the] Order of Protection enforced." After reviewing the unfavorable probation report, the court sentenced defendant to one year in the New City Reception and Rehabilitation Center.

The Appellate Term affirmed, concluding that "[s]ince defendant was permitted to explain to the court the allegedly exculpatory details of his breach of the order of protection, the requirements of due process were satisfied" and that the enhanced sentence was a proper exercise of discretion considering the fact that defendant's wife was the complainant. A Judge of this Court granted leave to appeal. 79 N.Y.2d 922, 582 N.Y.S.2d 82, 590 N.E.2d 1210.

People v. Maietta

On March 11, 1991, defendant pleaded guilty in satisfaction of several charges of burglary and related crimes in four separate indictments to criminal possession of stolen property in the third degree, two discrete charges of attempted burglary in the third degree, and burglary in the third degree. In accepting defendant's guilty pleas, the court agreed that it would make the sentences concurrent so that the aggregate term of imprisonment for defendant would be a maximum of eight years and a minimum of four years. The plea arrangement was expressly conditioned, however, upon the defendant's "not be[ing] rearrested between [the date of the plea] and the date of sentence". The record contains the following colloquy:

"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 it 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 MAIETTA: 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 MAIETTA: Yes, sir.

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

"DEFENDANT MAIETTA: No, sir.

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

"DEFENDANT MAIETTA: Yes."

On May 2, 1991 when defendant appeared for sentencing, the prosecuting attorney advised that defendant had been arrested on an indictment charging him with the commission of a burglary and related crimes in Westchester County on March 28, 1991. Defense counsel, in an extended statement, explained that the Westchester indictment was for a burglary in Yonkers in which the perpetrators employed a jeep registered to his client but not driven by him. Defendant had nothing to do with it, he said, and he had three alibi witnesses who would testify that his client was working at the time of the crime.

Defense counsel produced an unsigned statement from one Anthony Salveggi to the effect that he had been driving defendant's jeep, that defendant was not present, and that the person who had committed the burglary was Alfredo Occhino, his passenger in the jeep. It appears, however, that Anthony Salveggi was known as a professional burglar who had participated with defendant in past crimes and that Alfredo Occhino had been charged as a codefendant in one of the burglary indictments to which defendant had pleaded guilty.

At the end of the discussion, the court, adverting to the no-arrest condition, stated:

"it was a condition that may result in an increased sentence I wanted everyone to fully understand. I wasn't going to ambush anyone on the date of sentence."

and further:

"an arrest is still an arrest, and I look at it, at an arrest and sometimes I use it and sometimes I don't, it depends on my review of the quality of the arrest and some of the circumstances surrounding it before I actually use it as an enhancing factor despite the strong language that I use at the time that I accept the plea and condition it on another arrest.

"However, in this case not only was the defendant arrested but he was subsequently indicted so that there is an additional filter for the quality of the arrest, and not only was he arrested and not only was he indicted, but he was arrested and indicted for things that he does professionally, burglary."

The court denied defendant's application to withdraw the four guilty pleas and then pronounced consecutive sentences for the crimes such that the minimum term was 10 years and the maximum 20.

On appeal, the Appellate Division, with two Justices dissenting in part, affirmed (see, People v. Maietta, 173 A.D.2d 17, 578 N.Y.S.2d 529). The Court expressly rejected the view of the dissenters that where a defendant denies committing the alleged postplea crime or participating in the acts which lead to the arrest, "it is incumbent upon the sentencing court to conduct a hearing to resolve the disputed factual contentions" (id., at 27, 578 N.Y.S.2d 529). The case is before us by leave of a Justice of the Appellate Division.

People v. Ogtong

By a plea of guilty on March 6, 1991, defendant was convicted of criminal possession of a weapon in the third degree. In accepting the plea, the court, as part of the plea agreement, stipulated that it would sentence defendant to five years' probation. Before adjourning the matter until the sentencing date, the court admonished defendant as follows:

"you are getting...

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