Opposition — Pugioti v. New York

; P 1

No. 83-1210 <wEyR ha US |

FEB 13 1984

ALEXANDE® LL. STEVAS

IN THE : :

Supreme Court of the United fates

October Term, 1983

—f*

JOHN PUGIOTI,

Petitioner,

against

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of New York,

Appellate Division, First Department

RESPONDENT’S BRIEF IN OPPOSITION

Mario Merona

District Attorney

Bronx County

Attorney for Respondent

215 East 161st Street

Bronx, New York 10451 *

(212) 590-2060

Peter D, Coppincton

Rocer L. Stravis

Assistant District Attorneys

Of Counsel

Questions Presented

1. Whether a writ should issue to review a staic court’s

discretionary refusal to allow petitioner to withdraw an

intelligently and voluntarily entered guilty plea?

2. Whether a writ should issue to review a state court's

discretionary refusal to relieve counsel and grant a con-

tinuance to allow new counsel to be appointed where peti-

tioner had already been granted one continuance for this

purpose and his last minute request was calculated to delay

the proceedings.

TABLE OF CONTENTS

Questions Presented

Table of Authorities

Statement of the Case

The Indictment

The Plea

Petitioner’s Motion to Withdraw His Guilty Plea

The Sentence

The Decision of the New York Supreme Court,

Appellate Division, First Department

Order Denying Leave to Appeal to the New York

Court of Appeals

Argument

Point—A writ of certiorari should not issne to re-

view a state trial court’s discretionary refusal

to allow petitioner to withdraw an intelligently

and voluntarily entered guilty plea and its dis-

eretionary refusal to grant a continuance to

enable new counsel to be appointed, where peti-

tioner had already been granted one continn-

ance for this purpose

Conelusion

PAGE

oo wn 1

i

TABLE OF AUTHORITIES

PAGE

Cases:

Avery v. Alabama, 308 U.S. 444 (1940) 5,7

Brady v. United States, 397 U.S. 742 (1970) 6

Cleveland v. United States, 322 F.2d 401 (D.C. Cir.

1963)

Holloway v .Arkansas, 435 U.S. 475 (1978)

Lisenba v. California, 314 U.S. 219 (1941)

Menna v. New York, 423 U.S. 61 (1975)

Morris v. Slappy, U.S. ——, 103 S.Ct. 1610 (1983) 7,

Nagelberg v. United States, 377 U.S. 266 (1964)

People v. Dixon, 29 N.Y.2d 55 (1971)

People v. Friedman, 39 N.Y.2d 463 (1976)

People v. LaRuffa, 34 N.Y.2d 242 (1974)

People v. Tinsley, 35 N.Y.2d 926 (1974)

Tibhbett v. Hand, 294 F.2d 68 (10th Cir. 1961)

Tollett v. Henderson, 411 U.S. 258 (1973)

Ungar v. Sarafite, 376 U.S. 575 (1964)

I'nited States ex rel. Baskerville v. Deegan, 428 F.2d

714 (2d Cir. 1970) 7

United States v. Burkeen, 355 F.2d 241 (6th Cir. 1966)

United States v. Llanes, 374 F.2d 712 (2d Cir. 1967)

United States v. Ostrer, 597 F.2d 337 (2d Cir. 1979)

I'nited States v. Tortora, 464 F.2d 1202 (2d Cir. 1972)

Naw anroannwaon © @®

~1-1 0 @ db

Other Authorities:

Stern and Gressman, Supreme Court Practice, 5th ed.

1978, § 6.35 5

No. 83-1210

IN THE

Supreme Court of the United States

October Term, 1983

Joun Puatori,

Petitioner,

against

Tue Pror.e or THE STATE OF New York,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of New York,

Appellate Division, First Department

RESPONDENT’S BRIEF IN OPPOSITION

The respondent, State of New York, respectfully re

quests that the Court deny the petition for a writ of cer-

tiorari, seeking review of the decision of the New York

Supreme Court, Appellate Division, First Department.

Statement of the Case

The Indictment

By an indictment filed on or about January 19, 1982, the

Bronx County Grand Jury charged that petitioner had com-

mitted the crimes of Attempted Murder in the Second De-

gree (two counts), Criminal Use of a Firearm in the First

Degree, Assault in the First Degree (four counts), Criminal

Use of « Firearm in the Second Degree, Criminal Possession

of a Weapon in the Second Degree and Criminal Possession

of a Weapon in the Third Degree. Indictment Number

262/82.

The Plea

On October 4, 1982, after his two victims had testified

at trial, petitioner aborted the trial and pled guilty to the

top two counts of the indictiuent as part of a negotiated

plea and sentence agreement whereby all the remaining

counts of the indictment were dismissed in exchange for

petitioner's agreement to accept a prison sentence of not

less than six years and not more than eighteen years (R.

65-67, 68, 69, 72, 96, 103, 110-111).”

Petitioner admitted that on the evening of December 2,

1951, he shot both Phillip Giambrone and Mario Bucceri

R. 73-74). Petitioner was involved in an automobile collision

with his two victims and after they helped petitioner to

repair his car, he shot each of them once in the head

(R. 95-96).

Petitioner acknowledged that he had discussed the plea

with his attorney, Michael Direnzo, and with his family,

and assured the court that he had not been forced to plead

guilty, but did so voluntarily (R. 65-67, 68-69, 71). Peti-

tioner understood that by pleading guilty he was waiving

the right to continue his jury trial with its concomitant

rights to a unanimous jury verdict, to present witnesses

on his own behalf, to cross-examine the People’s witnesses

* Numerals preceded by “R” refer to the pages of petitioner's

Appendix below.

3

and, to testify on his own behalf (R. 69-71). After deter-

mining that petitioner had, in fact, committed the crime of

Attempted Murder in the Second Degree, and that his plea

was entered voluntarily, the court accepted it (R. 76).

Appellant was paroled with the consent of the prosecutor,

so that he could obtain medical treatment*® prior to the

execution of sentence (R. 78-82).

Petitioner’s Motion to Withdraw His Guilty Plea

On October 29, 1982, the date sentence was to be imposed,

petitioner, through his counsel Michael Direnzo, informed

the court that he wished to withdraw his guilty plea (R. 89-

90). To effectuate the plea withdrawal, petitioner had

retained Phillip Carlton, a Florida attorney who apparently

was not admitted to practice in New York (R. 90). The

court indicated that a voluntary guilty plea had been en-

tered and that it would not entertain an oral motion to

withdraw the plea at that time, but would grant a continu-

ance to afford Mr. Carlton the opportunity to submit a

formal written plea withdrawal application (R. 101). The

court then remanded petitioner (R. 1038).

The Sentence

On November 5, 1982, the adjourned sentence date, Mi-

chael Direnzo appeared on behalf of petitioner because

Phillip Carlton, whom petitioner sought to have substituted

as his counsel, was not present (R. 106-108). In light of

Mr. Carlton’s absence, the court denied Mr. Direnzo’s mo-

tion to be relieved as petitioner’s counsel (R. 114, 116).

* Petitioner, an amputee, was to be fitted with a prosthetic device

(R. 79-80).

4

The court stated that, in the absence of a formal application,

it would refuse to entertain petitioner’s application to with-

draw his plea (R. 108-109). Availing himself of his right

to speak prior to the imposition of sentence, petitioner told

the court that he was not guilty and pled guilty only because

he was told he was going to lose his trial (R. 115). After

hearing from petitioner, the court imposed the negotiated

sentence of not less than six nor more than eighteen years’

imprisonment (R. 115-118).

The Decision of the New York Supreme Court,

Appellate Division, First Department

By an order entered September 27, 1983, the New York

Supreme Court, Appellate Division, First Department,

unanimously affirmed, without opinion, petitioner’s judg-

ment of conviction. People v. Pugioti, 96 A.D.2d 1152 (1st

Dept. 1983).

Order Denying Leave to Appeal to the

New York Court of Appeals

By an order entered November 22, 1983, The Honorable

Bernard 8S. Meyer, Associate Judge of the New York Court

of Appeals, denied, without opinion, petitioner’s application

to appeal to that court. People v. Pugioti, —— N.Y.2d

—— (1983).

ARGUMENT

POINT

A writ of certiorari should not issue to review a

state trial court’s discretionary refusal to allow peti-

tioner to withdraw an intelligently and voluntarily

entered guilty plea and its discretionary refusal to

grant a continuance to enable new counsel to be ap-

pointed, where petitioner had already been granted

one continuance for this purpose.

Petitioner contends that a writ of certiorari should be

issued to review the state trial court’s refusal: 1) to allow

petitioner to withdraw his intelligently and voluntarily en-

tered guilty plea, and 2) to relieve petitioner’s counsel,

Michael Direnzo and grant a further continuance to enable

new counsel to be substituted. Since these actions were

within the informed discretion of the state trial court and

turn upon their own facts, affecting only the litigants, a

writ should not be issued.

The decision to allow a criminal defendant to withdraw

his validly entered guilty plea is committed to the sound

discretion of the trial court. See Nagelberg v. United

States, 377 U.S. 266 (1964); People v. Tinsley, 35 N.Y.2d

926 (1974). This Court has consistently refused to review

the discretion of state trial courts. See Avery v. Alabama,

308 U.S. 444, 446 (1940). Petitioner’s case does not warrant

a departure from this long held principle, especially because

the state appellate court correctly decided the issue. See

Stern and Gressman, Supreme Court Practice, 5th ed. 1978,

§ 635, p. 490.

6

Petitioner entered a plea bargain only after his victims

had testified against him at trial. This fact, coupled with a

lengthy, detailed plea allocution, during which petitioner

acknowledged that his guilty plea was voluntary and en-

tered only after consultation with his attorney and family,

incontrovertibly established the voluntary and intelligent

nature of petitioner’s plea. See People v. Friedman, 39

N.Y.2d 463, 467 (1976); People v. Diron, 29 N.Y.2d 55

(1971). Notwithstanding petitioner’s claims to the con-

trary, the epileptic seizure of a witness was largely irrele-

vant and did not force his guilty plea. In any event, peti-

tioner’s guilty plea forfeited his right to contest the court’s

decision not to declare a mistrial in the wake of such an

incident. See Mecnna v. New York, 423 U.S. 61, 62 n.2

(1975); Tollett v. Henderson, 411 U.S. 258, 263 (1973);

People v. LaRutia, 34 N.Y.2d 242 (1974), vacated on other

grounds, 419 U.S, 959 (1974). Moreover, petitioner never

epileptic fit, nor any other reason to

support his eleventh hour plea withdrawal motion. Never-

9

cited the witness

theless, the trial court was willing to entertain petitioner’s

motion, but only upon a formal written application, which

would articulate the basis on which he sought to withdraw

his plea of guilty. When petitioner failed to submit a

formal application on the adjourned sentence date however,

petitioner's plea withdrawal attempt was unmasked as a

purely dilatory tactic. Thus, the court correctly refused to

entertain petitioner’s plea withdrawal motion. See, gener-

ally, Brady v. United States, 397 U.S. 742, 756-757 (1970).

Equally meritless is petitioner’s contention that the trial

court should have relieved petitioner’s counsel, Michael Di-

renzo, and granted a further continuance to enable new

‘

counsel to be substituted. As with the withdrawal of a

guilty plea, ‘‘broad discretion must be granted trial courts

on matters of continuances.’’ JJorris vy. Slappy, —— U.S.

——, 103 S.Ct. 1610, 1616 (1983) ; see Ungar v. Sarafite, 376

U.S. 575, 589 (1964); Lisenba v. California, 314 U.S. 219,

228 (1941); Avery v. Alabama, supra. This Court should

not review the state trial court’s discretionary refusal to

grant petitioner’s last minute request for a continuance to

obtain new counsel. See Avery v. Alabama, supra. More-

over, the state appellate court correctly decided this issue.

Petitioner, who had been free on bail for four weeks,

waited until the last possible moment, just prior to the

imposition of sentence, before he requested a new attorney.

Although petitioner could offer no explanation for the delay,

the trial court did not summarily deny this untimely request,

but granted an initial continuance to enable new counsel to

prepare a plea withdrawal motion. When new counsel

failed to appear on the adjourned date however, the court

refused to either relieve Michael Direnzo or grant yet

another continuance to enable new counsel to be appointed.

Mr. Direnzo stood by petitioner, as counsel, while the trial

court proceeded with sentence. Thus, petitioner’s claim

that he was sentenced without counsel is not supported by

the record.

Furthermore, although petitioner desired counsel other

than Michael Direnzo, it is axiomatic that the right to

counsel of one’s choosing is not an absolute right. United

States v. Ostrer, 597 F.2d 337, 341 (2d Cir. 1979); United

States v. Tortora, 464 F.2d 1202, 1210 (2d Cir. 1972), cert.

denied, 409 U.S. 1063 (1972) ; United States ex rel. Basker-

ville v. Deegan, 428 F.2d 714, 716 (2d Cir. 1970), cert. denied,

400 U.S. 928 (1970) ; United States v. Burkeen, 355 F.2d 241,

245 (6th Cir. 1966), cert. denied, 384 U.S. 957 (1966);

Tibbett v. Hand, 294 F.2d 68, 73 (10th Cir. 1961) ; see Morris

v. Slappy, supra (Sixth Amendment does not guarantee

meaningful relationship between accused and his counsel).

Here, petitioner's last minute request for new counsel was

clearly a dilatory tactic, calculated to delay his inevitable

incarceration. Under such circumstances, the trial court

correctly refused to sanction such an abuse of the judicial

process. Sve United States v. Llanes, 374 F.2d 712, 717 (2d

Cir. 1967), cert. denied, 388 U.S. 917 (1967); Cleveland y.

United States, 322 F.2d 401, 402-403 (D.C. Cir. 1963), cert.

denied, 875 U.S. 884 (1963); see generally Holloway vy.

Arkansas, 485 U.S, 475, 486-487 (1978). Therefore, the trial

court acted properly in refusing to relieve Mr. Direnzo and

seeing to it that he represented petitioner at sentence.

In sum, certiorari review is unwarranted in this case.

The actions of the state trial court were within its discretion

and turned on the peculiar facts of petitioner’s case. Thus,

review could affect only the litigants and no question of

overriding importance has been presented to justify the

issuance of a writ of certiorari.

Conclusion

The petition for a writ of certiorari should, in all

respects, be denied.

Respectfully submitted,

Mario MERoua

District Attorney

Bronx County

Attorney for Respondent

Peter D, CoppinGcTon

Rocer L, Stavis

Assistant District Attorneys

Of Counsel

February 1984