People v Quinones

[*1] People v Quinones 2009 NY Slip Op 52672(U) [26 Misc 3d 1206(A)] Decided on November 13, 2009 Supreme Court, Kings County Konviser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 29, 2010; it will not be published in the printed Official Reports.

Decided on November 13, 2009
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Louis Quinones, Defendant.



5712/92



Appearances of Counsel:

Kings County District Attorney's Office

Lori Glachman, Esq.

Guy Raimondi, Esq (Defense Counsel)

Jill Konviser, J.

On April 22, 1992, the defendant shot Gilbert Perez and Perez's pregnant girlfriend, Naomi Pica, as they sat in the backseat of a taxicab. Perez died as a result of his gunshot wounds and Pica was injured by the bullet that was lodged in her spine. On June 16, 1993, after a jury trial, the defendant was convicted, inter alia, of manslaughter in the first degree (for killing Perez) and assault in the second degree (for injuring Pica). Consecutive sentences were imposed for those crimes.[FN1] The defendant did not claim that consecutive sentences were improperly imposed for these crimes at the time of sentence in 1993. The defendant did not claim that consecutive sentences were improperly imposed during the 1995 reconstruction hearing held due to the loss of portions of the trial transcript. And, the defendant did not claim that consecutive sentences were improperly imposed on direct appeal to the Appellate Division, Second Department, in 1997. Now, however, almost sixteen years after the judgment of conviction became final, the defendant claims for the first time that the consecutive sentences should be set aside under Criminal Procedure Law §440.20 as Perez and Pica were hit by the same bullet. As the defendant has not met his burden of proving by a preponderance of the evidence that Pica and Perez were in fact hit by the same bullet, his motion to set aside the sentence is denied.

Procedural History

The Trial

The trial record shows that on April 22, 1992, the defendant, Gilbert Perez and Naomi Pica were all seated together in the backseat of a taxicab in Kings County. Perez, the decedent, sat in [*2]between the defendant and Pica. As the three of them were seated in the taxi, the defendant produced a .9mm handgun and began firing. Although Pica testified that six shots were fired, the ballistics evidence shows, and the parties now concede, that only five bullets were in fact fired. Five discharged .9mm shells were recovered from the interior of the taxi.[FN2]

The evidence shows that four of the five bullets made contact with Perez. One hit decedent on the right side of the abdomen and remained lodged inside of his body. A second bullet hit him in the back, perforating his heart and aorta, and exited his body via the left chest area. The remaining two bullets caused graze wounds to the defendant's back. The medical examiner testified, and the autopsy report shows, that the decedent's death was caused both by the bullet that was lodged in his abdomen and the bullet that perforated his heart and aorta as it passed through his body. The Crime Scene Unit Report showed that three bullet holes were found in the interior of the taxi.[FN3]

The evidence further shows that as Pica was attempting to exit the taxi, she was hit by a single bullet in the lower back area. That bullet became lodged inside the lumbar area of her spine. The existing trial record does not identify which of the five bullets fired by the defendant made contact with Pica.[FN4]

At the conclusion of the trial the defendant was convicted of manslaughter in the first degree for causing the decedent's death, assault in the second degree for shooting Pica in the back, as well as the additional crimes of criminal possession of a weapon in the second and third degrees and reckless endangerment in the second degree, a misdemeanor.

Sentence

On the date of sentence, June 16, 1993, the prosecutor requested that the trial court impose consecutive sentences for the manslaughter, assault and reckless endangerment convictions. Defense counsel opposed the application and argued that consecutive sentences would not be appropriate for the assault and misdemeanor reckless endangerment convictions as such crimes were "part of a single act." The sentencing minutes are unclear as to whether defense counsel also meant to claim that consecutive sentences were inappropriate for the manslaughter and assault convictions. Notably, however, defense counsel did not argue that Pica and the decedent were hit by the same bullet. Thereafter, the trial court imposed consecutive sentences for the manslaughter and assault [*3]convictions, concurrent with the remaining convictions.

[T]he court is imposing the following sentence. As to Manslaughter 1, a minimum eight-and-a-third, maximum twenty-five years in a State correctional institution consecutive with everything else.

The Court finds the Assault 2, to be a separate and distinct charge. Assault on somebody else, somebody else was shot, and the Court imposes a sentence of two-and-a-third years to seven years for the Assault 2, consecutive.

On the count of Criminal Possession of a Weapon in the Second Degree, the Court imposes a minimum five years, maximum fifteen years concurrent with the other sentence.

Regarding Criminal Possession of a Weapon in the Third Degree, the Court imposes two-and a-third years to seven years concurrent with the other sentence.

And regarding Reckless Endangerment, the Court imposes one years [sic] concurrent with the other sentence.

Thus, the actual sentence being ten-and-two third years to thirty-two years in a State correctional facility.

Sentencing Minutes of June 16, 1993 at 640-41.

Reconstruction Hearing

On April 13, 1995, pursuant to an order issued by the Appellate Division on February 24, 1995, a reconstruction hearing was held before the trial court as certain portions of the trial transcript had been lost. Specifically, the testimony given by six witnesses could not be located: Naomi Pica, the medical examiner, a crime scene unit detective, a ballistics expert, a police officer who arrived at the scene shortly after the shootings, and the decedent's father. Present for the hearing was the trial judge, the trial prosecutor, the defendant, the defendant's trial counsel and the defendant's appellate counsel. The trial judge conducted the hearing by playing, in open court, a tape recording that he had made of his trial notes. The parties, through the use of their own notes and recollections, then commented on the tape recording and reconstructed the missing testimony. The reconstruction hearing transcript shows that neither of the two attorneys who represented the defendant at the hearing argued or even suggested to the trial court that the reconstruction hearing should focus on whether any issues existed regarding the propriety of the imposed consecutive sentences.

Direct Appeal

The defendant, through appellate counsel, filed a direct appeal of his conviction with the Appellate Division, Second Department, in which he claimed that the trial court erred: (1) when it instructed the jury regarding the defendant's failure to testify; (2) by refusing to grant the defendant's request for an identification charge; (3) in the manner in which it charged the jury on the first-degree manslaughter charge; and, (4) by incorrectly stating the permissible sentencing range for first-degree manslaughter prior to imposing sentence with respect to that count. The defendant also filed a supplemental pro se brief in which he claimed that: (1) the trial court improperly admitted evidence [*4]with respect to the defendant's involvement with the deceased in the drug trade; and, (2) portions of the prosecutor's voir dire and opening statement were improper. The People filed a brief in opposition.

On January 13, 1997, the defendant's conviction was unanimously affirmed by the Appellate Division, Second Department. See People v. Quinones, 235 AD2d 437 (2d Dept. 1997). The Court held, inter alia, that all of the claims that the defendant had raised, including those in his supplemental pro se brief, were either unpreserved for appellate review or without merit. Id. On June 27, 1997, the defendant's application for leave to appeal to the New York Court of Appeals was denied.See People v. Quinones, 90 NY2d 862 (1997) (Levine, J.).

The Motion Before the Court

The defendant now claims for the first time, sixteen years after the judgment of conviction became final, that the consecutive sentences imposed on the manslaughter and assault convictions were illegal as each of those crimes was caused by a single act. Specifically, the defendant hypothesizes that the bullet that passed through the decedent's body was the very one that lodged in Pica's back, and, therefore, a single act caused both crimes, mandating concurrent sentences.[FN5] On September 25, 2009, this Court held a hearing and oral argument, in the presence of the defendant and his assigned counsel, to address the legality of the consecutive sentences imposed for the manslaughter and assault convictions. For the reasons that follow, the defendant's motion to set aside the sentence pursuant to C.P.L. §440.20 is denied.

Discussion

The law is well-settled that "sentences may be imposed to run consecutively when multiple offenses are committed through separate and distinct acts, though they are part of a single transaction." People v. Ramirez, 89 NY2d 444, 451 (1996); People v. Laureano, 87 NY2d 640, 643 (1996); People v. Brown, 80 NY2d 362, 364 (1992). "An act' under Penal Law §15.00(1) is a bodily movement.'" People v. Brown, 80 NY2d at 364.

Where, as here, a defendant is charged with shooting two victims, consecutive sentences may be imposed for the crimes so long as each victim was hit by a different bullet. Thus, if, during the course of a single transaction, each victim of a defendant's gunfire is hit by different bullets, consecutive sentences lawfully may be imposed. People v. Boone, 30 A.D3d 535 (2d Dept.), lv. denied, 7 NY3d 810 (2006); People v. Porter, 256 AD2d 363 (2d Dept. 1998), lv. denied, 93 N.Y. 2 976 (1999); People v. Black, 249 AD2d 318 (2d Dept.), lv. denied, 91 NY2d 1005 (1998); People v. Reyes, 239 AD2d 524 (2d Dept.), 90 NY2d 909 (1997). Conversely, however, "if the firing of [*5]a single shot" causes the death of one victim and also causes an injury to a second victim "the imposition of consecutive sentences would be unlawful." People v. Scandell, 143 AD2d 423 (2d Dept.), 73 NY2d 790 (1988); cert. denied, 489 U.S. 1080 (1989). see People v. Braithwaite, 63 NY2d 839, 843 (1984).

In a motion to set aside the sentence under C.P.L. §440.20, it is the defendant's burden to prove "by a preponderance of the evidence every fact essential to support the motion."[FN6] C.P.L. §440.30(6); People v. Luis Diago, 5 Misc 3d 1011(A), 2004 WL 2495849 (Sup. Ct. NY Co. Nov. 3, 2004) (Ward, J.); see People v. Lasky, 31 NY2d 146, 149 (1972) (noting that the defendant has the burden of proof in a post conviction motion under C.P.L. §440.20); People v. Degondea, 3 AD3d 148, 163 (1st Dept. 2003), lv. denied, 2 NY3d 798 (2004); People v. Lee Gan Gee, 2002 NY Slip Op. 40155(u), 2002 WL 1012901 at *1 (NY Supp. App. Term. Mar. 5, 2002), lv. denied, 98 NY2d 652 (2002); People v. Broderick, 43 Misc 2d 1014, 1016 (Sup Ct. Kings Co. 1964), app. dismd., 24 AD2d 638 (2d Dept. 1965); mot. for lv. to app. den. sub. nom. People v. Broderick v. La Vallee, 17 NY2d 48 (1965). To satisfy the preponderance standard, "[t]he party who has the burden of proof must convince the factfinder that the existence of the fact is more probable than its nonexistence." People v. William Carolan, 24 Misc 3d 1220(A), 2009 WL 2138931 at *4 (Sup. Ct. Kings. Co. April 24, 2009) (Dabiri, J.); People v. Alexander, 136 Misc 2d 573, 582 (Sup Ct. Bronx Co. 1987). Thus, in order for the defendant to prevail on this motion, he must prove that it is more probable than not that a single act resulted in both the manslaughter and assault convictions. The defendant has not met this burden.

The trial record does not identify which of the five bullets fired by the defendant made contact with Pica. Instead, it accounts for the five bullets in the following manner: one lodged inside of the decedent's body, one passed through the decedent's body, one lodged inside of Pica's body. The evidence further shows that the decedent was grazed by two of the five bullets and that the grazing bullets did not contribute to his death. Additionally, three bullet holes were found in the interior of the taxi. An analysis of this evidence shows that there are multiple scenarios under which a bullet could have entered Pica's back, including that Pica was hit by either one of the two bullets that grazed the decedent; was hit by a separately fired bullet that made no contact with the defendant's body; or was hit by the bullet that passed through the decedent's body.

The defendant, however, focuses only on the scenario most favorable to him that the decedent and Pica were hit by the same bullet a scenario that is not supported by a preponderance of the evidence. Indeed, the defendant has not presented any credible evidence to show that it was more likely than not that Pica was hit by the bullet that passed through the decedent as opposed to a separately fired bullet that did not result in the decedent's death. As the defendant, after a hearing, has failed to prove by a preponderance of the evidence "every fact essential to support the motion," namely, that a single act resulted in both the manslaughter and assault convictions, his motion to set aside the sentence pursuant to C.P.L. §440.20 must be denied. See C.P.L. §440.30(6).

Moreover, the validity of the defendant's claim that consecutive sentences were improperly imposed is undermined by the almost sixteen year delay between the date of conviction and the filing of the instant motion. Indeed, the Court of Appeals has held that a delay of more than a decade is an important factor to be considered in evaluating the seriousness of a defendant's claim. [*6]See People v. Nixon, 21 NY2d 338, 352 (1967), cert. denied, 393 U.S. 1067 (1969).

[R]evelatory of the seriousness of defendant's present claims, is that defendant waited over a decade before asserting them. In stale cases, defendants have all to gain by reopening old convictions, retrial being so often an impossibility. These are factors to consider in determining how valid the assertions are [.]"

Id. Thus, a lengthy delay may be considered in evaluating the validity and legitimacy of a post-judgment motion. People v. Melio, 304 AD2d 247, 252 (2d Dept. 2003); People v. Hanley, 255 AD2d 837, 838 (3d Dept. 1998), lv. denied, 92 NY2d 1050 (1999); People v. Mario Perez, 11 Misc 3d 1093(A), 2006 WL 129585 at *2 (Sup. Ct. Kings Co. Mar. 24, 2006) (Carroll, J.); People v. Kenneth Kirkland, 1 Misc 3d 904(A), 2003 WL 23009231 at *4 (Sup. Ct. Kings Co. Dec. 8, 2003) (Schneier, J.).

Under the circumstances present in this case, the defendant's unexplained delay in raising his claim underscores its lack of merit. As a threshold matter, had the trial court in fact erred by imposing consecutive sentences for the manslaughter and assault convictions, such blatant error surely would have been raised clearly and unambiguously by trial counsel at the time of sentencing. It was not. Indeed, prior to the imposition of sentence trial counsel did not argue (as the defendant now does, almost sixteen years later) that consecutive sentences were inappropriate as Pica was hit in the back by the same bullet that passed through the decedent's body.

Similarly, the propriety of the consecutive sentences was never raised or even mentioned during the extensive reconstruction hearing that was conducted by the trial court on April 13, 1995. Indeed, a central purpose of a reconstruction hearing is to give a defendant the opportunity to use alternative means, such as the notes and recollections of counsel and the trial judge, "to satisfactorily demonstrate whether genuine appealable and reviewable issues do or do not exist." People v. Glass, 43 NY2d 283, 286 (1977); People v. Rivera, 39 NY2d 519, 523 (1976); see People v Parris, 4 NY3d 41, 48 (2004). A failure of a defendant to pursue matters diligently that should be properly raised at a reconstruction hearing leaves a defendant "open to the suspicion that he thinks the likelihood of really finding significant appellate issues remote - and would prefer failure in reconstructing the proceedings to success, hoping to claim prejudice when reconstruction proves impossible." People v. Parris, 4 NY3d at 48.

In this case, the defendant was represented at the reconstruction hearing not by one but by two attorneys trial counsel and appellate counsel. At no time, however, did either counsel argue or even suggest to the trial court that the record be developed to determine whether consecutive sentences were appropriate. This Court, therefore, must infer that the defendant's attorneys did not raise the issue as they determined that the trial court's decision to impose consecutive sentences was unquestionably supported by the trial record. That the defendant is now claiming for the first time, fourteen years after the reconstruction hearing took place, and almost sixteen years after sentence, that the hearing testimony was insufficient to support the consecutive sentences imposed is the type of sophisticated sandbagging that the Court of Appeals decried in People v. Parris, 4 NY3d at 48, and cannot tolerated by this Court.

Additionally, the defendant did not argue on direct appeal that consecutive sentences were improperly imposed, thereby further undermining his current claim. In fact, the defendant did raise a claim on direct appeal with respect to the propriety of the sentence imposed, but did so on grounds other than that which he now asserts. At no time did he claim that consecutive sentences were improper as the manslaughter and assault crimes were committed by a single act. That the defendant [*7]declined to raise any claim on direct appeal with respect to the imposition of consecutive sentences strongly supports the reasonable inference that the consecutive sentences were validly imposed.

Conclusion

The motion to set aside the sentence is denied. This constitutes the Decision and Order of the Court.

Dated: Brooklyn, New York

November 13, 2009

_______________________

J.S.C. Footnotes

Footnote 1:The defendant was also convicted criminal possession of a weapon in the second and third degrees and reckless endangerment in the second degree, a misdemeanor. Concurrent sentences were imposed for these crimes.

Footnote 2:The trial evidence showed that a miscellaneous sixth bullet, a deformed lead .45 caliber bullet, was recovered approximately thirty feet away from the taxi. That round, however, was not fired from the defendant's gun.

Footnote 3:See People's Supplemental Memorandum of Law of September 25, 2009 at 4; Defendant's Companion Memorandum of Law of August 25, 2009 at 3.

Footnote 4:On April 13, 1995, pursuant to an order issued by the Appellate Division on February 24, 1995, the trial court conducted a hearing to reconstruct portions of the trial record for which the court reporter's notes could not be located. The subject of the reconstruction hearing included, inter alia, the trial testimony given by Naomi Pica, the medical examiner, a crime scene unit detective, and a ballistics expert. The testimony given by the remaining witnesses, which included the taxi cab driver (who ran out of the taxi before the shooting), an additional ballistics expert and various other police witnesses, did not require reconstruction and was included in the record on appeal.

Footnote 5:In November 2008, the defendant filed a pro se motion to set aside the sentence pursuant to Criminal Procedure Law §440.20 on the ground that the consecutive sentences imposed for his manslaughter and assault convictions were illegal as each of those crimes was caused by a single act. The People filed an affirmation and memorandum of law in opposition to that motion. Thereafter, the parties submitted additional letters and memoranda to the Court. After reviewing the submitted documents, the trial and reconstructed transcript and other records, this Court assigned counsel to the defendant pursuant to County Law Art. 18B. Assigned counsel filed additional papers, the People replied to those papers and assigned counsel filed a sur-reply.

Footnote 6:By contrast, on direct appeal, it is the People's burden to demonstrate the legality of consecutive sentences. People v. Taveras, 12 NY3d 21 (2009); People v. Rosas, 8 NY3d 493 (2007).