People v. Carromero

• Citation: 2015 N.Y. Slip Op. 25312,16 N.Y.S.3d 708,49 Misc.3d 579
• Decision Date: 03 September 2015
• Docket Number: 4283/85
• Parties: The PEOPLE of the State of New York v. Carlos CARROMERO, Defendant.
• Court: United States State Supreme Court (New York)

49 Misc.3d 579
16 N.Y.S.3d 708
2015 N.Y. Slip Op. 25312

The PEOPLE of the State of New York
v.
Carlos CARROMERO, Defendant.

4283/85

Supreme Court, Bronx County, New York.

Sept. 3, 2015.

16 N.Y.S.3d 709

Assistant District Attorney Eric Hirsch, Office of the Bronx County District Attorney, Samuel Braverman, Esq., Fasulo, Braverman & Dimaggio, for the defendant.

Opinion

STEVEN L. BARRETT, J.

49 Misc.3d 580

Unusual fact patterns often present unusual legal issues. This is such a case. This case involves the prosecution of defendant for the murder of John Pugh, whom defendant allegedly shot in the back on September 8, 1984. On March 19, 1986, defendant pled guilty to attempted murder in the second degree and bribery in the second degree in full satisfaction of all the counts in the instant indictment and he also pled guilty to one count of burglary in the third degree in full satisfaction of all the counts in Indictment No. 2493/84. At the plea proceeding before the Hon. Robert Cohen, defendant admitted that he intended to cause Pugh's death and that he attempted to cause Pugh's death by shooting him. Defendant also admitted that he offered a police officer $25,000 not to arrest him for the shooting of Pugh. (See transcript of plea proceeding attached as Exhibit B to defendant's motion at p. 4,7,8).¹ On August 5, 1986, defendant was sentenced to concurrent indeterminate terms of imprisonment of six to eighteen years on the attempted murder count and one and one third to four years on the bribery count. On August 28, 1995, having served almost ten years of his sentence, defendant was released from prison.

On May 10, 2013, the victim, John Pugh died. On May 17, 2013, Dr. Susan Elay, the Acting Deputy Chief Examiner of the Bronx County Office of the Chief Medical Examiner performed an autopsy on Pugh. Dr. Elay concluded that the immediate cause of Pugh's death was sepsis, which stemmed from complications caused by the unremoved bullet that had lodged in Pugh's spine upon the shooting by defendant in 1984. On November 6, 2013, defendant was arrested, and, on November 8, 2013, defendant was arraigned on a felony complaint charging him with murder in the second degree and was remanded. On November 14, 2013, defendant was indicted and charged with one count of murder in the second degree under Indictment No. 3488/13.

In a decision with respect to Indictment No. 3488/13 dated May 1, 2014, the Court found: 1) the evidence presented to the

49 Misc.3d 581

Grand Jury with respect to causation was legally sufficient; 2) the prosecution was not barred on double jeopardy grounds; 3) defendant would be given credit for the almost ten years that he served on his

16 N.Y.S.3d 710

sentence on the attempted murder charge if he is convicted on the pending murder charge; and 4) that defendant's constitutional right to a speedy trial was not violated. People v. Carromero, 43 Misc.3d 1218(A), 2014 WL 1717092. Additionally, relying upon People v. Latham, 90 N.Y.2d 795, 799, 666 N.Y.S.2d 557, 689 N.E.2d 527 (1997), the Court denied defendant's motion to preclude the use of his prior guilty plea at a trial on the murder charge. Id. This latter ruling was premised in part on the fact that defendant had not yet moved to withdraw or set aside his plea to the attempted murder charge. In the intervening year between the Court's decision and the present, based upon a conflict of interest raised by defendant's counsel, the Court assigned new counsel for defendant. That counsel has now filed a motion, pursuant to CPL § 440.10(h), seeking to vacate defendant's 1986 plea and conviction to attempted murder and bribery, which, if granted, would preclude the use at defendant's murder trial of the factual admissions made by defendant during the course of his 1986 plea allocution. See People v. Moore, 66 N.Y.2d 1028, 1030, 499 N.Y.S.2d 393, 489 N.E.2d 1295 (1985) (a guilty plea once withdrawn or vacated is out of the case forever for all purposes, including the use of the contents of the plea allocution on the People's direct case or for impeachment purposes should defendant testify at trial).² For the following reasons, defendant's motion is denied.

Defendant moves for vacatur based upon the ineffective assistance of plea counsel. Specifically, defendant claims that counsel's performance was deficient because counsel failed to apprise him prior to pleading guilty that the factual admissions he made when pleading guilty to attempted murder and bribery could be used against him at a subsequent murder

49 Misc.3d 582

trial if the victim died.³ As support for his claim, defendant includes an affirmation from plea counsel in which counsel avers in pertinent part that he never informed defendant that, if the victim died and the prosecuting authority brought murder charges, his plea allocution could be used against him at a trial on a murder charge.⁴ (See Plea Counsel affirmation at ¶ 4 attached as Exhibit C to defendant's motion.)

16 N.Y.S.3d 711

Defendant also includes his own affidavit in which he registers his belief that his plea and sentence ended all litigation with respect to his case and claims that he was not informed to the contrary. (See affidavit of Carlos Carromero at ¶ 3, 4 attached as Exhibit D to defendant's motion.) Further, defendant states that he would never have pleaded guilty had he known that he could be subsequently prosecuted for murder if the victim died. (See affidavit of Carlos Carromero at ¶ 4.)

With respect to both a trial court's and an attorney's constitutional obligation to ensure that before pleading guilty a defendant has a full understanding of the consequences of his or her plea, the appellate courts have drawn a distinction between direct consequences—of which the defendant must be advised, and collateral consequences—of which the defendant need not be advised.⁵ A direct consequence is one which has a definite, immediate and largely automatic effect on a defendant's

49 Misc.3d 583

punishment; whereas, a collateral consequence is one peculiar to the individual's personal circumstances and generally results from actions taken by agencies the Court does not control. See People v. Peque, supra, 22 N.Y.3d 168 184, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265 (1995). Examples of direct consequences include: the forfeiture of trial rights; the imposition of a mandatory term of imprisonment; and the imposition of mandatory post-release supervision. Examples of collateral consequences include: the loss of the right to vote, the right to travel abroad, the right to gain civil service employment, and the right to possess firearms; an undesirable discharge from the Armed Services; the imposition of a prison term upon revocation of post-release supervision; sex offender registration under SORA; and civil confinement under SOMTA. People v. Peque, supra, 22 N.Y.3d at 184–5, 980 N.Y.S.2d 280, 3 N.E.3d 617.

Here, defendant concedes that counsel's failure to apprise him that his plea could be used against him at a subsequent trial is a collateral consequence of his plea to attempted murder in the second degree. (See defendant's motion at p. 5, 10). Even assuming, arguendo, that defendant had not made such a concession, the Court still would have concluded that the use of defendant's plea allocution at a subsequent trial is a collateral consequence of pleading guilty. This is so because the use of defendant's plea allocution is not an automatic, immediate or definite consequence of defendant's plea or punishment. Indeed, the use of defendant's plea allocution is dependent upon the occurrence of two contingencies: 1) the death of Mr. Pugh, which occurred over twenty-seven years

16 N.Y.S.3d 712

after defendant pleaded guilty to attempted murder, and 2) the decision of the Bronx District Attorney's Office to prosecute defendant for Pugh's murder. Under these circumstances, where the plea and consequence are so attenuated in time and likelihood, no counsel or court could be expected to foresee that defendant's plea allocution might be used against him in a subsequent murder trial and to inform

49 Misc.3d 584...