People v. Carnevale

• Decision Date: 20 December 2012
• Citation: 957 N.Y.S.2d 746,2012 N.Y. Slip Op. 08831,101 A.D.3d 1375
• Parties: The PEOPLE of the State of New York, Respondent, v. Ashley N. CARNEVALE, Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1375
957 N.Y.S.2d 746
2012 N.Y. Slip Op. 08831

The PEOPLE of the State of New York, Respondent,
v.
Ashley N. CARNEVALE, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 20, 2012.

[957 N.Y.S.2d 747]

Catherine A. Barber, Albany, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.

SPAIN, J.

[101 A.D.3d 1376]Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered March 10, 2011, convicting defendant following a nonjury trial of the crimes of murder in the second degree (two counts), attempted assault in the first degree, assault in the second degree and attempted robbery in the first degree (two counts).

On the evening of January 20, 2009, defendant and her husband, Anthony Carnevale III, went to the home of an acquaintance, Ethan Button, in the Town of Windsor, Broome County to obtain pain medicine (Vicodin pills). In the past, Button had sold them Vicodin, which was prescribed to him for a medical condition. Carnevale had spoken on the telephone with Button several times earlier that evening, during which Button indicated that he would not sell them any Vicodin that day. Upon arriving around 9:15 p.m., defendant and Carnevale were admitted into Button's house, and Button and his houseguest, Jean Clark, who was on the telephone during the entire visit, declined defendant and Carnevale's request to sell them Vicodin. After conversing cordially with Button for 15 to 20 minutes, defendant and Carnevale left and got into their

[957 N.Y.S.2d 748]

car parked in the driveway. A couple of minutes later, while defendant remained in their car, Carnevale knocked on the door to Button's house, asking for defendant's purse and, upon entering, Carnevale shot Button in the back. Button told him to take what he wanted. Carnevale then shot Clark several times, killing her instantly. Carnevale apologized to Button, who gave him a bottle of Vicodin, and blamed the shootings on Button's refusal to help them. Carnevale indicated that he could not leave any witnesses, and a struggle ensued over the gun between Carnevale and Button, during which Carnevale was shot and injured. Button called 911 around 9:50 p.m. Defendant, hearing the shots, moved into the driver's seat of the car and drove away alone just as emergency personnel began arriving.

Defendant was taken into custody around 11:00 p.m. at the home of Carnevale's parents, where she resided with them, Carnevale, her son and their cousin. During an overnight police interrogation, partially recorded on DVDs and spanning at least seven hours and perhaps up to 11 hours, defendant provided two signed statements. Initially, defendant acknowledged being aware that Carnevale took a loaded gun when he reentered Button's[101 A.D.3d 1377]house, after stating to her that Button deserved to be “ripped off” for raising his prices. In her second statement, defendant ultimately stated that she and Carnevale had planned to return and shoot both Button and Clark if they refused to “front” them pills during their first visit and that she had provided the ruse for Carnevale's return (i.e., her allegedly forgotten purse).

No request for a Huntley hearing or to suppress defendant's statements ( seeCPL 710.20) was made by defense counsel in his omnibus motion.¹ Defendant's written statements were admitted into evidence at her nonjury trial and the DVDs were played for the factfinder and admitted into evidence. Following a nonjury trial at which neither defendant nor Carnevale testified, defendant was convicted, under a joint indictment charging her with acting in concert with Carnevale, of two counts of murder in the second degree (intentional and felony) for the death of Clark, attempted first degree assault (Button), assault in the second degree (Button), and two counts of attempted robbery in the first degree. Carnevale entered a guilty plea to murder and attempted murder in October 2009. Defendant was sentenced to concurrent prison terms, with a maximum of 15 years to life with postrelease supervision, and now appeals.

Initially, while we are not persuaded by defendant's contention that the verdict is against the weight of the evidence, we agree that a new trial is required because she was deprived of meaningful representation at trial ( see People v. Ennis, 11 N.Y.3d 403, 411–412, 872 N.Y.S.2d 364, 900 N.E.2d 915 [2008],cert. denied––– U.S. ––––, 129 S.Ct. 2383, 173 L.Ed.2d 1301 [2009];People v. Caban, 5 N.Y.3d 143, 152–156, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005];People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995];People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994];People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Since an acquittal would not have been unreasonable, we “weigh the relative probative force of conflicting testimony and

[957 N.Y.S.2d 749]

the relative strength of conflicting inferences that may be drawn from the testimony” ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1985] [internal quotations and citation omitted] ). Carnevale's mother testified that defendant and Carnevale were home that evening, defendant was irritable, in pain and arguing with Carnevale regarding Button. She overheard Carnevale say that Button was going to be or deserved to be shot; defendant told him to be quiet. About an hour later, Carnevale's mother overheard defendant ask Carnevale if he had shells or ammunition. [101 A.D.3d 1378]They borrowed money for gas around 8:00 p.m. and left, returning a short time later when Carnevale ran into the house briefly to retrieve a gun. Carnevale's father testified that he had refused his son's request that evening to borrow his gun; later, when defendant called home to report hearing gunshots inside Button's home, Carnevale's father discovered that his gun and speed loader were missing. Police later recovered that gun at the scene, which was determined to be the murder weapon. The speed loader was found in the front seat of Carnevale and defendant's car. Carnevale's cousin also testified that he had overheard defendant and Carnevale arguing that evening, defendant was in pain and, about 20 minutes later, he also refused Carnevale's request to borrow one of his guns. Button testified that he was not sure if defendant and Carnevale drove away after their first visit or remained in their car in the driveway. He further testified that Carnevale entered his home alone the second time and he observed defendant remain in the passenger seat of the car until after the shooting, when she fled. En route to the hospital in an ambulance, an injured Carnevale told a police sergeant that defendant had nothing to do with the shooting. Unmistakably, the crucial evidence that defendant shared Carnevale's intent and plan to shoot Button and Clark when he reentered the house came from the admission of defendant's statements to police. Viewing the foregoing evidence in a neutral light, we cannot say that the verdict was contrary to the weight of credible evidence ( see People v. Arnold, 85 A.D.3d 1330, 1332, 924 N.Y.S.2d 679 [2011] ).

“[W]hat constitutes effective assistance is not and cannot be fixed with precision” ( People v. Rivera, 71 N.Y.2d at 708, 530 N.Y.S.2d 52, 525 N.E.2d 698), and requires consideration of whether “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” ( People v. Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Of course, counsel's failure “to make a particular pretrial motion generally does not, by itself, establish ineffective assistance” ( People v. Rivera, 71 N.Y.2d at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;see People v. De Mauro, 48 N.Y.2d 892, 893–894, 424 N.Y.S.2d 884, 400 N.E.2d 1336 [1979];People v. Miller, 11 A.D.3d 729, 730, 783 N.Y.S.2d 130 [2004] ). Here, however, we are convinced that trial counsel's failure to make a pretrial Huntley motion to suppress defendant's oral and written statements to police, at least on voluntariness grounds, or to argue involuntariness to the factfinder, among other deficiencies, deprived defendant of meaningful representation and a fair trial ( see People v. Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;People v. Benevento, 91 N.Y.2d at 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Hobot, 84 N.Y.2d at 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102;People v. Miller, 11 A.D.3d at 730, 783 N.Y.S.2d 130).

We begin by examining the evidence

[957 N.Y.S.2d 750]

and testimony adduced [101 A.D.3d 1379]at trial ² to ascertain whether defense counsel had a colorable basis to move to suppress defendant's statements to police and, if so, whether defendant has demonstrated “the absence of strategic or other legitimate explanations for counsel's failure to request a [ Huntley ] hearing” ( People v. Rivera, 71 N.Y.2d at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698), or to argue involuntariness to the factfinder. It was undisputed that defendant did not reenter Button's home or discharge a gun, that Carnevale reentered alone and shot the victims, and that defendant's culpability is premised upon accessorial liability under Penal Law § 20.00. This required the People to prove that defendant acted with the requisite intent to commit these crimes, i.e., with the intent to kill Clark and cause serious physical injury to and to rob Button, and that she solicited, commanded, importuned, or intentionally aided Carnevale to engage in such conduct ( seePenal Law § 20.00). Defendant's statements to police, particularly her second statement, were...