# Opposition — Pugioti v. New York

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1147%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1080

## Text

; 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1147%3A2. Public record. Not legal advice.