| People v Nicelli |
| 2010 NY Slip Op 05586 [74 AD3d 1235] |
| June 22, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Joseph Nicelli, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Monique Ferrell and Jacqueline Linaresof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.),rendered January 26, 2009, convicting him of enterprise corruption, body stealing (4 counts),opening graves (4 counts), unlawful dissection of a human being (4 counts), forgery in thesecond degree (9 counts), forgery in the third degree (9 counts), criminal possession of a forgedinstrument in the second degree (9 counts), criminal possession of a forged instrument in thethird degree (9 counts), falsifying business records in the first degree (36 counts), grand larcenyin the third degree (10 counts), grand larceny in the fourth degree (8 counts), recklessendangerment in the first degree (9 counts), reckless endangerment in the second degree (9counts), and scheme to defraud in the first degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
Pursuant to CPL 220.10 (2), the defendant exercised his statutory right to plead guilty to allcounts charged in the indictment without having been offered a plea agreement from either theDistrict Attorney or the Supreme Court. The Supreme Court advised the defendant that despitehis plea of guilty, it was making no promises as to sentence on any count, and reserved its rightto sentence the defendant to consecutive terms of imprisonment where appropriate. On January26, 2009, the defendant was sentenced to an indeterminate term of 8 to 24 years imprisonmentfor the conviction of enterprise corruption, a class B felony, and concurrent terms ofimprisonment on the remaining 121 counts of the indictment. The defendant contends on appealthat the sentence is excessive.
Prior to pleading guilty, the Supreme Court required the defendant to execute a waiver of hisright to appeal. On appeal, the defendant contends that the waiver was invalid as it was not basedupon any promise or concession by the Supreme Court or the prosecutor. Although the Court ofAppeals has determined that a waiver of the right to appeal, when knowingly and voluntarilyentered into, precludes any challenge to the severity of the sentence (see People v Lopez,6 NY3d 248 [2006]), the basis for that policy is "that the public interest concerns underlying pleabargains generally are served by enforcing waivers of the right to appeal. Indeed, such waiversadvance that interest, for the State's legitimate interest in finality [*2]extends to the sentence itself and to holding defendants to bargainsthey have made" (People v Seaberg, 74 NY2d 1, 10 [1989]). However, in this case, asthere was no promise, plea agreement, reduced charge, or any other bargain or considerationgiven to the defendant in exchange for his plea, it was improper for the Supreme Court to requirethe defendant to waive his right to appeal (see People v Coles, 13 AD3d 665 [2004];People v Meiner, 20 AD3d 778 [2005]). As the defendant's waiver of his right to appealwas invalid, it does not preclude the defendant's challenge to his sentence as excessive.
The defendant was one of several funeral directors who participated in and profited from theactivities of a human tissue-harvesting business that constituted a criminal enterprise, pursuant toPenal Law § 460.20 (1) (a). The defendant played an integral role in the enterprise. Hesupplied cadavers to the enterprise, which then harvested tissue and forged consents from next ofkin and forged medical and social histories of the decedents in order to deceive thetissue-processing companies to accept tissue from cadavers that would not, because of theirmedical conditions, otherwise be acceptable as donors. During the time of his involvement, thedefendant admittedly supplied approximately 100 cadavers to the enterprise, without the consentof next of kin, and received more than $100,000 for his efforts.
Under the circumstances of this case, the sentence imposed was not excessive (seePeople v Suitte, 90 AD2d 80 [1982]). Mastro, J.P., Miller, Austin and Roman, JJ., concur.