People v. Gerber

• Decision Date: 14 September 1992
• Parties: The PEOPLE, etc., Respondent, v. Bradford J. GERBER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 171

589 N.Y.S.2d 171

182 A.D.2d 252

The PEOPLE, etc., Respondent, v. Bradford J. GERBER, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 14, 1992.

Thomas J. O'Neill and Peter L. Maroulis, Poughkeepsie (William O. Bittman, of counsel), for appellant (one brief filed).

William V. Grady, Dist. Atty., Poughkeepsie (Alfred T. Tallakson, of counsel), for respondent.

Before SULLIVAN, J.P., and ROSENBLATT, MILLER and SANTUCCI, JJ.

SULLIVAN, Justice Presiding.

The defendant, having been convicted of manslaughter in the second degree upon a negotiated guilty plea, advances several claims on this appeal regarding alleged police and prosecutorial misconduct. He contends that these instances of purported misconduct raise issues which survive his guilty plea and which mandate the dismissal of the indictment against him. We disagree with the defendant and take this opportunity to discuss the requirements for, as well as the ramifications of, the entry of a valid plea of guilty.

I.

On April 26, 1990, the defendant, Bradford J. Gerber, was indicted for the crime of manslaughter in the second degree in that "on or about the 30th day of December 1989, [he] recklessly caused the death of another [named] person * * * by shooting him with a rifle". The defendant, who has never denied committing the shooting, was arrested shortly after the incident and allegedly made voluntary statements to the New York State Police. According to the prosecution, those statements indicated that, after drinking at a local tavern, the defendant and three friends, one of whom was the victim, went to the defendant's residence on the morning of December 30, 1989. Subsequent to their arrival, they drank some beer and the defendant additionally used cocaine. As the group apparently engaged in horseplay, the defendant grabbed a seven-millimeter rifle which was leaning against the wall, examined it and satisfied himself that it was not loaded, and then pointed it at the victim and pulled the trigger. The rifle discharged, mortally wounding the victim and thus precipitating the defendant's arrest and indictment.

In a series of motions, the defendant claimed that the indictment should be dismissed in the furtherance of justice (see, CPL 210.40) because of pervasive misconduct on the part of the police and the prosecutor. These alleged instances of misconduct, sharply disputed by the People, consisted of the following: (1) a New York State Police Senior Investigator listened to portions of an audiotaped interview between the defendant and his attorney on the date of the arrest after discovering that the attorney had left his briefcase, containing a tape recorder and audiotape, at police headquarters, (2) the police test-fired (and thereby altered) a "live" round of ammunition found in the rifle before the defense counsel was formally notified of its existence and had an opportunity to examine it, (3) the police improperly "staged" and exhibited to the Grand Jury a photograph of the rifle depicting it with the bolt drawn back to reveal two cartridges inside, even though the design of the weapon was such that the spent cartridge would be ejected from the weapon automatically once the bolt was drawn back, and (4) during the Grand Jury proceedings, a New York State Police Investigator who was not qualified as a firearms expert answered hypothetical questions regarding the defendant's operation of the rifle.

The County Court held an evidentiary hearing on these allegations of misconduct. Subsequent to the hearing, the court issued an amended decision and order which reviewed the testimony of the hearing witnesses and which denied the defendant's motion to dismiss the indictment or to bar the People from presenting any evidence at trial regarding the presence of the second, "live" bullet in the rifle. Specifically, the court found that the Senior Investigator's conduct in deliberately listening to a brief portion of the taped interview between the defendant and his attorney was "improper" and "inappropriate", notwithstanding the Senior Investigator's testimony that he did so only because he suspected that the tape recorder was voice activated and thus might have recorded police conversations. ¹ However, the court also found a total lack of evidence that the defendant suffered any prejudice as a result of the incident; hence, it determined that the drastic remedy of dismissal was unwarranted.

Similarly, the court found the defendant's other claims of misconduct unavailing. With regard to the test-firing of the "live" cartridge removed from the rifle, the court found that the defense counsel was on notice of the existence of this second bullet prior to its destruction by virtue of his receipt of a police photograph of the rifle showing that it contained one spent and one "live" cartridge. Moreover, the court determined that police testimony indicating that the "live" round was in the rifle when it was recovered from the crime scene was credible, and that "no evidence was presented to indicate that the live cartridge in dispute was other than in the rifle when it was fired by the defendant". Hence, the court refused to bar evidence of the bullet, but reminded the defense counsel that he was "free to explore this issue at trial". Likewise, the court rejected the claim that a photograph of the weapon had been "staged," finding that the police had not acted improperly in manually preventing the ejection of the spent cartridge from the rifle so as to accurately depict the contents of the weapon at the time it was recovered. Furthermore, the court noted that while a State Police Investigator who was not a firearms expert had given opinion testimony before the Grand Jury regarding the operation of the rifle, "the [Grand] [j]ury was free to accept or reject his conclusion and could draw their own inferences and conclusions concerning the weapon and defendant's recklessness". Additionally, since the investigator had received extensive firearms training, was skilled in the use of firearms, and had photographed and examined the rifle in this case, the court found that "[i]t was not entirely improper for [the investigator] to express his opinion as to the proper inference to be drawn from a given set of facts as an aid to the Grand Jury". Accordingly, to the limited extent that the court found inappropriate conduct on the part of law enforcement officials, it determined that there was not "such exceptionally serious misconduct as to warrant a dismissal of this indictment".

Thereafter, on March 28, 1991, the defendant appeared in the County Court and, pursuant to a negotiated agreement with the People, offered to plead guilty to the charge of manslaughter in the second degree in exchange for a promised sentence of 2 to 6 years imprisonment. The defendant indicated to the court that he had received sufficient time and opportunity to discuss the matter with his counsel and with his family, that he had consulted with his attorney regarding all of his options and potential defenses, and that he was satisfied with counsel's representation. The defendant further stated that he had not recently consumed any alcohol or drugs, that he was not under professional care for any emotional problems, that he had not been threatened or forced into pleading guilty, that the only promise made to him concerned the negotiated sentence, that he was offering to plead guilty "willingly, knowingly, and voluntarily", and that he was in fact guilty of the crime as charged. He further acknowledged and waived the right to remain silent, to have a jury or bench trial, to have the prosecution prove his guilt beyond a reasonable doubt, to confront and cross-examine prosecution witnesses, and to call witnesses and to testify on his own behalf. Additionally, the defendant acknowledged that a guilty plea was equivalent to a conviction after trial and that his plea to a felony could subject him to an enhanced sentence on any future convictions. The defendant then described the crime, stating that he had been "fooling around" with the rifle and that he shot and killed the victim. He admitted that "I thought [the weapon] wasn't loaded, but I obviously didn't check it well enough", and he agreed that his failure to properly check the weapon was due to his ingestion of cocaine and alcohol prior to the shooting. The court accepted the guilty plea.

On May 20, 1991, the defendant appeared for sentencing and received the promised term of 2 to 6 years imprisonment. He did not seek to withdraw his plea, nor did he voice any objection during the proceedings. This appeal ensued.

II.

We begin with the familiar observation that the importance of plea bargaining to our system of justice cannot be overstated. Indeed, it has become an indispensable and generally beneficial component of day-to-day operations in New York's courts of criminal jurisdiction. As our Court of Appeals recently observed in People v. Seaberg, 74 N.Y.2d 1, 7, 543 N.Y.S.2d 968, 541 N.E.2d 1022:

"Plea bargaining is now established as a vital part of our criminal justice system. Indeed, as we recognized years ago, the volume of criminal prosecutions is so great that if full trials were required in each case New York's law enforcement system would collapse (see, People v. Selikoff, 35 NY2d 227, 233 [360 N.Y.S.2d 623, 318 N.E.2d 784], cert. denied 419 US 1122 [95 S.Ct. 806, 42 L.Ed.2d 822]. Certainly nothing has happened since then to cause us to change that observation. The judicial acceptance of plea bargaining however, rests upon broader policy considerations. In addition to permitting a substantial conservation of prosecutorial and judicial resources, it provides a means where, by mutual concessions, the parties may obtain a prompt resolution of criminal proceedings with all the benefits that enure from final disposition. The plea bargain, or negotiated sentence, enables the parties to avoid the delay and...