PEOPLE v. GOMEZ (2020)

Judgment, Supreme Court, New York County (Melissa C. Jackson, J.), rendered November 9, 2017, convicting defendant, after a jury trial, of promoting prostitution in the third degree, and sentencing him, as a second violent felony offender with a prior violent felony conviction, to a term of 31/212 to 7 years, unanimously affirmed.

The verdict was supported by legally sufficient evidence (see People v. Gordon, 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ).  The evidence amply supports the conclusion that defendant advanced or profited from prostitution by either managing or supervising a business or enterprise that involved prostitution activity by at least two people (see Penal Law § 230.25[1];  People v. Freaney, 108 A.D.2d 228, 231, 488 N.Y.S.2d 759 [2d Dept. 1985] ).  Defendant's argument that the evidence only established his management of the particular person who testified is unpersuasive.  The testimony, as well as electronic evidence retrieved from defendant's phones, established that he managed or supervised a prostitution business by soliciting clients, setting and communicating rates, providing transportation, arranging for hotel rooms, preparing advertisements, and addressing nonpayment.  Defendant's own communications also reflect that multiple people were engaged in prostitution as part of the business or enterprise he was managing, including during the period covered by the indictment.

The court properly admitted evidence of defendant's communications during the approximately two weeks preceding the period covered in the indictment.  These communications were relevant to the charged crime, and they established the existence of a prostitution business which defendant continued to manage or supervise into the period covered by the indictment (see People v. Frumusa, 29 N.Y.3d 364, 369–70, 57 N.Y.S.3d 103, 79 N.E.3d 495 [2017] ).  In any event, even if viewed as uncharged crime evidence, the prior communications were also highly probative to show a common scheme or plan (see People v. Molineux, 168 N.Y. 264, 293, 305, 61 N.E. 286 [1901];  see also People v. Brown, 74 A.D.3d 1748, 1749, 902 N.Y.S.2d 276 [4th Dept. 2010], lv denied 15 N.Y.3d 802, 908 N.Y.S.2d 162, 934 N.E.2d 896 [2010];  People v. Grant, 104 A.D.2d 674, 675, 479 N.Y.S.2d 914 [3d Dept. 1984] ), and their probative value outweighed any prejudicial effect.

Defendant's claim that the sentencing court considered crimes of which defendant was acquitted requires preservation (see People v. Harrison, 82 N.Y.2d 693, 601 N.Y.S.2d 573, 619 N.E.2d 651 [1993] ), and we decline to review this unpreserved claim in the interest of justice.  As an alternative holding, we find that the record does not support defendant's assertion.  Although the court expressed its belief that the evidence also supported a conviction of other charges, it indicated that it was only sentencing defendant based on the charge of which he was convicted.  We perceive no other basis for reducing the sentence.