| People v Ahmed |
| 2010 NY Slip Op 03032 [72 AD3d 502] |
| April 15, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Saeed Ahmed, Appellant. |
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Judgment, Supreme Court, New York County (Robert H. Straus, J., at hearing; EdwinTorres, J., at jury trial), rendered July 18, 2007, convicting defendant of three counts ofpromoting prostitution in the third degree, and sentencing him to an aggregate term of five years'probation with community service, unanimously affirmed.
Defendant's principal contention is that the evidence was legally insufficient to establish hisguilt of promoting prostitution in the third degree. Ken Franzblau testified for the prosecution inhis capacity as an employee of Equality Now, an advocacy group that researches andinvestigates possible instances of human trafficking, organized prostitution and sex tourism. Adsfor enterprises engaging in these activities are posted on craigslist and other Web sites.
Franzblau found one such posting by an entity called JumpOff Destinations that arranged forwild party tours to the Dominican Republic, where "anything goes." JumpOff's Web sitedescribed package tours including travel, lodging and meals, and featured photos of women invarious states of undress. The site also indicated that other photos, which were "too hot" forInternet display, could be obtained by e-mail. Using the pseudonym "Dan Maginn," Franzblaubegan e-mail correspondence with defendant, who identified himself as "Saaed A.," JumpOff's"customer care representative."
In ensuing correspondence, defendant assured Franzblau that he could provide him with asmany women as he could handle, and that there would be enough women for all the men on thetour, adding that the price for the women was not included in the tour package and would have tobe paid out of pocket. Defendant informed Franzblau that he procured the women by telephoningthem prior to each tour's departure. According to defendant's terms, payment for the tour wouldhave to be made to "Saeed Ahmed/JumpOff Destinations."
In a telephone conversation recorded by the District Attorney's Office, Franzblau discussedtour packages with defendant and made arrangements for a $1,700 tour. Thereafter, anundercover detective visited defendant at his apartment under the pretext of booking such a tripto the Dominican Republic. The detective signed an agreement for four package tours at a priceof $6,800, but never made payment or traveled to the Dominican Republic. Police officerssubsequently executed a search warrant at defendant's apartment. The items seized includedinvoices with notations for "Dan Maginn" as well as other customers. In addition, the police[*2]recovered a contract with another customer who will behereinafter referred to as "A.E."
In a postarrest videotaped statement, defendant admitted to being contacted by A.E. viae-mail. Defendant stated that he met A.E. in the Dominican Republic, where the customer paid$1,550 for the tour package. Defendant admitted to providing A.E. with two women during thethree-day trip. Records obtained from American Airlines confirmed that defendant had flownfrom New York to Santiago, Dominican Republic, on March 29, 2006. The airline's records alsoconfirmed that A.E. flew from New York to Santiago on April 6, and returned to New York onApril 9.
Defendant's challenge to the legal sufficiency of the evidence is based upon the lack of proofthat he employed prostitutes or owned or managed a place of prostitution. Accordingly,defendant argues that his conviction should be reduced to the lesser charge of promotingprostitution in the fourth degree, which simply involves advancing or profiting from prostitution(Penal Law § 230.20), without any control or ownership of a business or enterprise. On theother hand, "A person is guilty of promoting prostitution in the third degree when he knowingly:1. Advances or profits from prostitution by managing, supervising, controlling or owning. . . a house of prostitution or a prostitution business or enterprise involvingprostitution activity by two or more prostitutes" (§ 230.25).
Four months after defendant's conviction, section 230.25 (1) was amended to expresslyinclude as proscribed conduct the advancement or profiting from prostitution by managing,supervising, controlling or owning "a business that sells travel-related services knowing thatsuch services include or are intended to facilitate travel for the purpose of patronizing aprostitute" (L 2007, ch 74, § 1). Needless to say, defendant was not prosecuted under thestatute as amended. Citing the amendment, defendant argues that his conduct, which involvedtravel-related services, did not come with the ambit of the preamended statute. This argument isunpersuasive because it is refuted by legislative history. The Senate Memorandum in Support ofthe amendment summarizes that "[s]ection 1 of the bill amends Penal Law § 230.25 toclarify that someone who sells travel services to prostitution tourists may be found guiltyof third-degree promoting prostitution, a class D felony" (Senate Mem in Support, 2007McKinney's Session Laws of NY, at 1601 [emphasis added]). Nothing in the preamended statutelends itself to a construction that would have excluded a travel-related enterprise from itscoverage. The evidence was thus legally sufficient to prove that defendant managed andcontrolled "a prostitution business or enterprise involving prostitution activity by two or moreprostitutes" within the meaning of section 230.25 (1).
We also reject defendant's argument that People v Barabash (35 AD3d 873 [2006]) is controlling. Thedefendants in Barabash ran a tourism business that provided trips to the Philippines andprocured "tour guides" who took customers to locations where prostitutes were available, andpaid the prostitutes on behalf of the customers. Without elaboration, the Court affirmed thedismissal of a count alleging promoting prostitution in the third degree, finding simply that theevidence before the grand jury "was not legally sufficient to establish that the defendantmanaged, supervised, controlled, or owned a prostitution enterprise" (id. at 874). Here,by contrast, the evidence established that defendant did not engage the prostitutes throughintermediaries. As part of his enterprise, defendant himself acted as the direct link between A.E.and the two prostitutes he procured.
Defendant's suppression motion was properly denied. Defendant was arrested in the hallwayoutside his apartment when the search warrant was executed. On that basis, he argues that hisright to counsel under People v Harris (77 NY2d 434 [1991]) was illegally circumvented[*3]because the police chose to apply for a search warrant ratherthan an arrest warrant. This argument is also unavailing. There is no constitutional right to bearrested, and the police are not required to stop an investigation at the first indication of probablecause for an arrest (People v Keller, 148 AD2d 958, 960 [1989], lv denied 73NY2d 1017 [1989]).
The testimony, photographs and prosecutorial remarks challenged by defendant asinflammatory and prejudicial were permissible within the context of the trial and did not deprivehim of a fair trial. Defendant's remaining contention is unpreserved, and we decline to review itin the interest of justice. As an alternative holding, we also reject it on the merits.Concur—Tom, J.P., Saxe, Renwick, DeGrasse and Richter, JJ.