People v. Serrano

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before RABIN; PER CURIAM; All concur except VALENTE; VALENTE
• Citation: People v. Serrano, 247 N.Y.S.2d 749, 20 A.D.2d 777 (N.Y. App. Div. 1964)
• Decision Date: 24 March 1964
• Parties: The PEOPLE of the State of New York, Respondent, v. Fernando SERRANO, Defendant-Appellant.

Page 749

247 N.Y.S.2d 749

20 A.D.2d 777

The PEOPLE of the State of New York, Respondent, v. Fernando SERRANO, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 24, 1964.

Gerald Zuckerman, New York City, for appellant.

Walter E. Dillon, New York City, of counsel (Isidore Dollinger, Dist. Atty.), for respondent.

Before RABIN, J. P., and VALENTE, McNALLY, STEUER and BASTOW, JJ.

PER CURIAM.

Judgment of conviction affirmed.

All concur except VALENTE, J., who dissents and votes to reverse in an opinion.

VALENTE, Justice (dissenting):

The question presented on this appeal is whether a judgment of conviction, entered upon a plea of guilty to murder, second degree, may stand, where the record shows that before taking the plea the Court elicited information from defendant indicating that defendant's acts would not constitute the crime of murder, second degree, but would, at most, be consistent with a killing in the heat of passion or perhaps even justifiable homicide.

After four days had been spent selecting a jury in the trial of an indictment charging murder first degree, defendant--at his request and on the consent of the Assistant District Attorney--was permitted to withdraw his plea of 'not guilty' and to plead guilty to the crime of murder, second degree.

When the defendant offered to plead guilty, the Court did not immediately accept the plea but elected to interrogate the defendant not only as to the circumstances of the plea but also as to the facts concerning the homicide itself. The defendant admitted he shot and killed Bonilla. However, the essential element of the crime of murder, second degree--the intent to kill--is not fairly deducible from the defendant's recitation of the circumstances of the killing, so far as he was permitted to recite them. Indeed, they are consistent with a lesser degree of crime or no crime at all.

The facts, as given by defendant and his counsel to the Court at the time of the taking of the plea, and subsequently at the time of sentence, disclosed a strained relationship between the defendant and the deceased, Bonilla, stemming from the arrest and imprisonment of Bonilla's friend on a charge of having raped defendant's wife. The Court was apprised of Bonilla's harassment and annoyance of the defendant as a consequence of the arrest of Bonilla's friend. Defendant had complained to the police about the deceased's harassment and threats.

The statements of defendant and his counsel differed substantially from the prosecutor's version of the crime, to the effect that shortly before the shooting, defendant had sent a friend to an apartment on an upper floor of the building in which defendant was employed as a superintendent, to lure the deceased down to defendant's floor; that defendant then called Bonilla by a vile name, shot him and dragged him by his hair into defendant's apartment where defendant then fired three more shots into him.

Obviously, the prosecutor's version was considerably at variance with defendant's, and what the Court did on sentence was to resolve the inconsistencies by deciding that Bonilla had not harassed the defendant and that defendant had requested a friend to go to the apartment, where Bonilla was, for other than a peaceful purpose. Moreover, the Court indicated that it had concluded that defendant had changed his plea because defendant's friend had been located and was prepared to testify that the defendant had requested the friend to call Bonilla down-stairs.

The resolution of the inconsistencies in the versions of the occurrence was of course not within the province of the Court. Those were questions for a jury to decide in determining defendant's guilt or innocence unless there was the interposition of a valid plea of guilt. In this...