People v Pampalone (Vito)

[*1] People v Pampalone (Vito) 2015 NY Slip Op 50982(U) Decided on June 22, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 22, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and CONNOLLY, JJ.
2014-210 S CR

The People of the State of New York, Respondent,

against

Vito Pampalone, Appellant.

Appeal from a judgment of the Justice Court of the Village of Amityville, Suffolk County (Elizabeth M. Niemi, J.), rendered September 3, 2013. The judgment convicted defendant, upon his plea of guilty, of using a premises for a nonpermitted use.

ORDERED that the judgment of conviction is affirmed.

On February 5, 2013, the People charged defendant with violating the Code of the Village of Amityville (Code) § 183-82, nonpermitted use of premises, and several other Code and state law violations, alleging, among other things, that he had rented each of several rooms, in a single-family home, to tenants living independently of one another. At a nonjury trial, at which defendant appeared pro se, after the People's first witness had testified to the illegal occupancy, the Justice Court granted defendant's request to adjourn the proceedings to permit defendant to obtain counsel. Defendant did so, and, without the trial having resumed, pleaded guilty to using a premises for a nonpermitted use in satisfaction of the remaining charges and was fined. Defendant appeals, asserting his innocence of all of the charges, alleging error with respect to the admission of evidence and the court's limitation of the scope of cross-examination at the aborted trial, and contending that his guilty plea resulted from his counsel's manipulation and fraud.

Defendant's belated claims of innocence and, in effect, that the plea agreement was unenforceable owing to counsel's misconduct, are belied by the plea and sentencing minutes, which establish that defendant's plea was knowingly, voluntarily, and intelligently entered. As defendant's claims otherwise find no support in the record, they must be rejected (see e.g. People v Patino, 119 AD3d 409, 410 [2014]; People v Fulton, 67 AD3d 484, 484 [2009]). Further, the alleged derelictions of counsel "involve matters outside the record" (People v Thacker, 47 AD3d 423, 423-424 [2008], citing People v Rivera, 71 NY2d 705, 709 [1988] and People v Love, 57 NY2d 998 [1982]) and may not be considered (cf. CPL 440.10). We note that defendant was free to reject the agreement if he was dissatisfied with its terms (People v Pelkey, 63 AD3d 1188, 1190 [2009]; see also People v Seaberg, 74 NY2d 1, 9 [1989] ["there is nothing

coercive in leaving with the defendant the option to accept or reject a (plea) bargain"]).

We further note that:

"where defendant has by his plea admitted commission of the crime with which he was charged, his plea renders irrelevant his contention that the criminal proceedings preliminary to trial were infected with impropriety and error;
his conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial" (People v Di Raffaele, 55 NY2d 234, 240 [1982]).

Thus, with certain exceptions, a defendant who has pleaded guilty is barred from "later seek[ing] review of claims relating to the deprivation of rights that took place before the plea was entered" (People v Parilla, 8 NY3d 654, 659 [2007], quoting People v Taylor, 65 NY2d 1, 5 [1985]), even where the plea occurs "in the midst of trial" (People v West, 184 AD2d 743, 744 [1992]; see People v Konieczny, 2 NY3d 569, 572 [2004] [a guilty plea " generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings' "], quoting People v Fernandez, 67 NY2d 686, 688 [1986]). Consequently, none of defendant's trial-related claims survive his guilty plea (see e.g. Fernandez, 67 NY2d at 688; People v Beckwith, 303 AD2d 594, 595 [2003]; People v Robles, 160 AD2d 252, 253 [1990]).

Accordingly, the judgment of conviction is affirmed.

Marano, P.J., Iannacci and Connolly, JJ., concur.

Decision Date: June 22, 2015