People v. McCarter
| Decision Date | 02 December 2022 |
| Docket Number | Ind. No. 746/2020 |
| Citation | 77 Misc.3d 825,179 N.Y.S.3d 536 |
| Parties | The PEOPLE of the State of New York v. Tracy MCCARTER, Defendant. |
| Court | New York Supreme Court |
For the People: Alvin Bragg, District Attorney, New York County
For the defendant: Kaplan Hecker & Fink, LLP, Sean Hecker, Esq., Alexandra Conlon, Esq., Molly K. Webster, Esq., Anne Yearwood, Esq., Dechert, LLP, Jeffrey A. Brown, Esq., Timothy Ly, Esq., Susman Godfrey, LLP, Jacob W. Buchdahl, Esq., ZMO Law, PLLC, Tess Cohen, Esq.
The defendant is charged with murder in the second degree following the stabbing death of her husband. The District Attorney of New York County has filed a "recommendation of dismissal" of the indictment and the defendant joins in that application. It is opposed by family members of the deceased.
Factual background.
On March 2, 2020, at 9:08 p.m. members of the New York Police Department responded to a radio run of an assault with a knife at 646 Amsterdam Avenue, Apt. 2C, in New York County. A neighbor had heard the defendant yelling, and later, "Don't take my purse, give me my purse, don't leave with my bag." "I have a knife," and finally, 1 When they entered the apartment, the police found a man lying face-up on the floor bleeding heavily from his neck. The defendant, who happens to be a nurse, was holding a towel on one of his wounds, attempting to stop the bleeding. More law enforcement officers arrived, followed by Emergency Medical Technicians. The officers inspected the apartment and ascertained that no other civilian was there except the defendant and the gravely injured man who was identified as the defendant's husband, James Murray. The defendant admitted to her neighbor, "I stabbed him."2 She made no mention to the neighbor or to the police that the deceased fell on the knife or that he strangled her.
The defendant was arrested at the scene and transported to the 24th Precinct for arrest processing. A silver kitchen knife was recovered from an area where the victim and the defendant had been in the apartment. Although the defendant had no visible injuries, she complained of an inability to walk, and said that she had been unconscious for a second or two during the altercation with her husband. Because of those complaints, the defendant was taken to a hospital for evaluation and possible treatment. Mr. Murray died at St. Luke's Hospital at 9:43 p.m. that same night. His autopsy revealed that his blood alcohol level was .15%, and he suffered a stab wound to his upper right chest, which angled right to left at a 45-degree downward angle, piercing his lung and reaching his spine. He also had four other knife wounds: two small, incised wounds to the right side of his neck and two vertical incised wounds to his right shoulder.
Procedural history prior to transfer to this Court.
The defendant was arraigned before a New York City Criminal Court Judge on March 3, 2020 and remanded for Grand Jury action. On the next date, when CPL § 180.80 would require the Court to release the defendant unless the People had conducted a preliminary hearing or voted an indictment within 144 hours of arraignment, the defendant's counsel waived the release time until March 27, 2020. Presumably, this was to allow the People to further investigate what happened the night of the stabbing, in light of the defendant's arraignment claims that she had been a victim of domestic violence at the hands of her late husband.
Meanwhile, the COVID-19 pandemic struck and the state went into lockdown, rendering it impossible to empanel grand juries or conduct court proceedings in person for months. On May 21, 2020, a preliminary hearing was held pursuant to CPL § 180.60. At that hearing, a judge found "reasonable cause to believe the defendant committed a felony" ( CPL § 180.70[1] ), and the defendant remained in jail. It was not until September 10, 2020, that an indictment was filed against the defendant charging her with one count of murder in the second degree ( Penal Law § 125.25[1] ), a class A-I felony. At the time, Cyrus R. Vance, Jr. was the District Attorney of New York County.
Prior to the defendant's indictment, her counsel was replaced by a team of attorneys from Dechert LLP and later joined by others from the ZMO Law Firm and Kaplan Hecker & Fink who were recruited by a domestic violence organization to accept the case pro bono. Following her indictment, the defendant's case was transferred to the Hon. Melissa C. Jackson in the Supreme Court for pretrial proceedings and eventual trial or disposition. While the case was pending before Justice Jackson, it proceeded in due course. The People applied to the Court for search warrants and exchanged discovery with defense counsel. The defense lawyers filed an omnibus motion, pursuant to which Justice Jackson found the Grand Jury presentation was legally sufficient, and ordered suppression hearings. Each side retained domestic violence experts.
Procedural history in this Court.
On January 1, 2022, a new District Attorney assumed office. On April 5, 2022, in anticipation of Justice Jackson's planned retirement, the case was transferred to this Court. After an initial appearance, the matter was scheduled for hearings and trial on May 25. On that date and in the six months that followed, perplexing and conflicting signals emanated from the District Attorney's office regarding the prosecution of this matter.
The first attempt to reduce and dispose of the case was made on May 25 when, with the assigned Assistant on trial elsewhere, a supervisor appeared seeking court approval of an Alford plea ( North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 [1970] ; People v. Miller , 91 N.Y.2d 372, 377, 670 N.Y.S.2d 978, 694 N.E.2d 61 [1998] ), in which the defendant would have pled guilty to manslaughter in the second degree ( Penal Law § 125.15[1] ) and menacing in the second degree ( Penal Law § 120.15[1] ), with no admission of wrongdoing or factual allocution.3 The deal included the promise that after a year of good behavior the defendant could withdraw her felony plea and stand convicted only of the B misdemeanor of menacing. Setting aside the fact that Alford pleas "are—and should be—rare," ( Silmon v. Travis, 95 N.Y.2d 470, 474, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000] ), the proposed plea was illegal. The New York State Legislature has mandated that a plea of guilty on an indictment for murder in the second degree must include at least a plea to a class C violent felony offense ( CPL § 220.10[5][d][i] ; People v. Myers , 167 A.D.3d 1573, 90 N.Y.S.3d 463 [4th Dept. 2018] ). The Court could not have accepted a plea of guilty to manslaughter in the second degree, a non-violent felony, to satisfy the indictment ( Penal Law § 70.02[1][b] ). Nor could the defendant have pled guilty to menacing in the second degree, which was neither on the indictment, nor a lesser included offense to the sole charge of murder (see CPL §§ 220.10[3] ; 220.20[1]).
While the executive staff went back to the drawing board, the Assistant District Attorney continued the prosecution. On July 27, 2022 the Assistant answered ready for suppression hearings. Nonetheless on that same day, a member of the District Attorney's executive staff made an oral application to dismiss the indictment so the People could replace it with a superior court information ("SCI") charging manslaughter in the first degree ( Penal Law § 125.20 ). The Court denied the oral application, instructing the People to put the motion in writing. Meanwhile, the assigned Assistant proceeded with the suppression hearings and prevailed.
On August 5, 2022, the People filed a motion pursuant to CPL §§ 210.20(1)(1) and 210.40, seeking an order dismissing the indictment in the interest of justice and granting leave to replace it with an SCI charging manslaughter in the first degree, upon which both the People and the defendant were prepared to proceed to trial. This was undercut by the defendant's papers, which made no mention of an SCI or a trial, but instead sought outright dismissal of the indictment against her. Regardless, the People's motion was wholly inadequate; there were no compelling circumstances rendering continued prosecution of the indictment unjust, and no rationale for going to trial on an SCI because manslaughter in the first degree is a lesser included offense to murder in the second degree that could have been presented to a petit jury for its consideration.4
Following the denial of the motion, the assigned Assistant District Attorney continued pursuing the murder case against the defendant. As late as September 12, 2022, she made an application pursuant to People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 (1981), seeking to put forth evidence at trial of prior bad acts by the defendant. The defense also made motions regarding the scope of the testimony of their expert witness, and a trial date of November 28 was chosen. Instead, on November 18, the District Attorney filed a letter with the Court and his recommendation of dismissal. On the date originally set for trial, he came to Court personally to argue in favor of dismissal.
The recommendation of dismissal.
On November 18, 2022 the District Attorney filed a three-page "recommendation of dismissal" (commonly referred to as a "DOR"). There is no such thing as a DOR in the Criminal Procedure Law, but these applications have been used as vehicles by which prosecutors inform the courts that there exists some impediment to continuing prosecution of a case. Other than to claim—incorrectly—that all avenues to pursuing alternative lesser charges were "foreclosed" by prior decisions of this Court, the District Attorney offered no reason in the recommendation for seeking to dismiss the case. He wrote: ...
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