People v. Maietta

173 A.D.2d 17, 578 N.Y.S.2d 529, 1991 N.Y. App. Div. LEXIS 16732
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 24, 1991
StatusPublished
Cited by6 cases

This text of 173 A.D.2d 17 (People v. Maietta) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Maietta, 173 A.D.2d 17, 578 N.Y.S.2d 529, 1991 N.Y. App. Div. LEXIS 16732 (N.Y. Ct. App. 1991).

Opinions

OPINION OF THE COURT

Ross, J.

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 § 140.25 [four counts]), burglary in the third degree (Penal Law § 140.20 [three counts]), possession of burglar’s tools (Penal Law § 140.35 [two counts]), criminal possession of stolen property in the third degree (Penal Law § 165.50), criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [three counts]), criminal mischief in the second degree (Penal Law § 145.10), criminal mischief in the third degree (Penal Law § 145.05 [three counts]), grand larceny in the fourth degree (Penal Law § 155.30), attempted grand larceny in the third degree (Penal Law §§ 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”.

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 [19]*19possessed 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 4 to 8 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:

"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.

[20]*20"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 2 to 4 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”. When the court asked him if that warning was clear, defendant unequivocally answered: "Yes”.

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 17 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 (Penal Law § 140.25), criminal trespass in the second degree (Penal Law § 140.15), and criminal mischief in the fourth degree (Penal Law § 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 [21]*21that 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.

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Cite This Page — Counsel Stack

Bluebook (online)
173 A.D.2d 17, 578 N.Y.S.2d 529, 1991 N.Y. App. Div. LEXIS 16732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-maietta-nyappdiv-1991.