People v Rizzo
Annotate this CaseDecided on March 27, 2006
Supreme Court, New York County
THE PEOPLE OF THE STATE OF NEW YORK
against
ALEXANDER RIZZO, ROBERT HOPKINS, and KEVIN QUINN, Defendants.
2977/86
For the People:
Robert M. Morgenthau
District Attorney
New York County
One Hogan Place
New York, New York 10013
By: Melissa Paolella
Assistant District Attorney
Of Counsel
For the Defendants Rizzo and Hopkins:
Kieran J. Sullivan, Esq.
399 Knollwood Road - Suite 203
White Plains, New York 10603
William A. Wetzel, J.
In 1986, a mere twenty years ago, each of these defendants was indicted for the crime of Conspiracy in the Fifth degree (Penal Law § 105.05) and related charges. By written plea agreement dated May 2, 1989, the defendants pled guilty to this misdemeanor offense for a promised sentence of no more than three years probation and fines totaling $220,000 for all three defendants. Each defendant's proportionate share of the fine was: Hopkins, $90,000; Rizzo, $90,000; and Quinn $40,000. The plea agreement provided that for purposes of collection in a civil proceeding, the payment obligation was joint and several. On May 2, 1989, all three defendants appeared in the Supreme Court, Criminal Term, Part 73, and entered guilty pleas.
As part of the written plea agreement, Alexander Rizzo's parents agreed to place a mortgage for $220,000 on real estate at 2801 Barclay Avenue in the Bronx to secure the payment [*2]of the fines imposed on the three defendants. In 1992, a judgment was entered against each of the defendants in the County of New York, apparently by the Attorney General of the State of New York. From that day in 1989 when the pleas were entered, up to the present, the People have never taken any steps whatsoever either to foreclose on the mortgage on the Barclay Avenue property or to enforce the individual judgments.
In 2004, the record owner of the Barclay Avenue premises requested that the People permit it to place in escrow the full amount of the mortgage, $220,000, so that the property could be sold. For reasons that elude this court, as well as Judge Mc Keon of the Supreme Court, Bronx County, the People refused to convert their mortgage lien to a cash escrow. Judge McKeon expressed his bewilderment by stating; "In candor, the court doesn't quite understand the cross motion by the District Attorney of New York County ." See Decision of 12/2/05 at Ex. D of Defense Motion.
On October 28, 2005, the People filed the instant motion seeking payment of the fines imposed on May 2, 1989, or, alternatively, a term of imprisonment for non-payment of the fine pursuant to CPL § 420.10(4)(b).
In the meantime, back in the Bronx, the dispute over the Barclay Avenue property mortgage continued. The parties did agree to put the funds in escrow, and they entered into a stipulation to that effect dated January 6, 2006. The $220,000 was then paid into an escrow account maintained by the New York County District Attorney's Office, where it remains today. Judge McKeon ordered that the funds remain in escrow pending the decision of either this court or his court. As the People concede, this court has jurisdiction to decide all issues relating to the fine in the criminal proceeding.
The People now ask this Court to resentence the defendants to one year incarceration and to order the defendants to immediately pay the $220,000 in fines. The defendants reply that the People seek an illegal remedy. First, the plea agreement and the actual sentence never contemplated incarceration. Second, the fines actually imposed are illegal, since Penal Law § 80.05(1) provides that the maximum allowable fine for conviction of a class "A" misdemeanor is $1,000, and there is not a scintilla of evidence to support higher fines pursuant to Penal Law § 80.05(5).
Although Penal Law § 80.05(1) specifies a maximum fine of $1,000 for an "A" misdemeanor, the People rely on Penal Law § 80.05(5) to justify the higher amount. That statute provides in pertinent part:
"If a person has gained money or property through the commission of any misdemeanor or violation then upon conviction thereof, the court, in lieu of imposing the fine authorized for the offense under one of the above subdivisions, may sentence the defendant to pay an amount, fixed by the court, not exceeding double the amount of the defendant's gain from the commission of the offense."
In order to take advantage of this alternative sentencing provision, however, the People (and the Court) must follow the procedure set forth in Criminal Procedure Law § 400.30, and [*3]conduct a hearing to establish the amount of the defendant's gain. The People must prove the amount of the defendant's gain by a preponderance of the evidence. If no hearing is held pursuant to CPL § 400.30, the People may alternatively rely on the defendant's plea allocution or an admission and amount specified in a plea agreement. The People concede that no hearing was held pursuant to CPL § 400.30. They argue that the amount of the fines is supported by the written plea agreement and by the defendants' plea allocution to Overt Acts 4 and 5 of the Conspiracy Count:
"On November 5, 1985, Kevin Quinn telephoned Defendant Hopkins and said that cash being transported in a car by Mick had been stolen.
Quinn said that Mick was unable to prevent theft by firing a gun at the thieves.
On November 6, 1985, Quinn and Hopkins discussed the theft again on the telephone and specifically that the amount of money stolen was about 50,000 to 60,000 dollars."
Transcript of plea allocution of May 2, 1989, at p. 9, lines 10-18 (Ex. A of Defense Motion).
The Plea Agreement simply sets forth the amount of the fine, without explanation of how the amount was determined. See Ex. B of Defense Motion.
The Court of Appeals has taken a dim view of divining evidence of the amount of restitution from the plea allocution in the absence of a hearing on the issue. In People v. Consalvo, 89 NY2d 140 (1996), the Court observed:
"In a case where guilt is established pursuant to a plea agreement rather than a trial, evidence to support the restitution amount generally can only be found in the agreement itself or the minutes of the plea allocution. Although a defendant may make a statement at the plea proceedings sufficient to support a determination of the victim's
out-of-pocket loss, thereby eliminating the procedures set forth in the Criminal Procedure Law, in most cases the court will be unable to determine the amount of restitution from the plea record." Id. at 144. [Emphasis Added].
The plea allocution can be a permissible substitute for a hearing, but only if the allocution contains an adequate evidentiary basis to support the amount of the fine. In People v. Harrington, 3 AD3d 737 (3rd Dept. 2004), lv. den. 4 NY3d 887 (2005), the court held that even though a defendant did not request a hearing, one should have been held because the plea minutes did not contain sufficient evidence to support the finding of the amount ordered.
The record here is similarly lacking. While the plea agreement does refer to the amount of the fine, it is devoid of any statement as to how that amount was calculated. Nor does it contain any stipulation or agreement that the fines represent, "an amount not exceeding double the amount of the defendants' gain from the commission of the offense." See PL § 80.05(5). It simply states that the parties agreed to pay the fine of $220,000. This is clearly insufficient.
The plea allocution is equally devoid of evidence supporting the calculation of the fine. The factual allocution on Overt Acts 4 and 5 discusses "fifty or sixty thousand dollars stolen [*4]from a car driven by Mick." The People's argument that one can easily infer from this record that the money stolen from the car is the measure of the defendants' profit from an illegal enterprise is fallacious. There is no reference whatsoever to the source of the money, in either the plea allocution or the written plea agreement. Furthermore, the People allowed the defendants to plead guilty to attempted conspiracy, and to carefully allocute only to attempting to conspire to operate a betting numbers enterprise. Therefore, the only evidence in this record is that these defendants planned to create a sports betting enterprise and had a telephone conversation about the theft of fifty or sixty thousand dollars from Mick's car. On this record, there is absolutely no evidence, much less the required "preponderance of the evidence," to prove the amount of defendants' gain from the criminal offense.
Commenting on the scope of the plea allocution in May of 1989, Judge Jerome Marks commented, "We are dealing with a misdemeanor. We don't have to be that careful." Tr. of 5/2/89 at p. 11, lines 13-17. Seventeen years and several proceedings later, we are confronted with the many unfortunate results of that lack of care. In the twenty years that have elapsed since these defendants were indicted, the People have inexplicably made no effort whatsoever to cure any defect, to collect the fines, or to enforce their mortgage. While it is unfortunate that the defendants are the undeserving beneficiaries of the People's initial bungling and subsequent neglect, this court has no alternative but to conclude that the fines are illegal and unenforceable. The People's request to now re-sentence the defendants to incarceration is denied. Finally, in anticipation of a possible request by the People that the court conduct an eleventh-hour hearing pursuant to CPL § 400.30 to determine the proper amount of the fine, let there be no doubt that such a request would be deemed manifestly untimely.
It is therefore ordered that the $220, 000 held in escrow by the office of the New York County District Attorney be returned to the entity from whom it was received and that so much of the sentence that imposed fines on the three defendants is vacated.
This constitutes the Decision and Order of this Court.
Dated: March 27, 2006
New York, NY
___________________________
William A. Wetzel
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