People v. Gerber

182 A.D.2d 252, 589 N.Y.S.2d 171, 1992 N.Y. App. Div. LEXIS 10593
CourtAppellate Division of the Supreme Court of the State of New York
DecidedSeptember 14, 1992
StatusPublished
Cited by87 cases

This text of 182 A.D.2d 252 (People v. Gerber) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gerber, 182 A.D.2d 252, 589 N.Y.S.2d 171, 1992 N.Y. App. Div. LEXIS 10593 (N.Y. Ct. App. 1992).

Opinion

OPINION OF THE COURT

Sullivan, J. P.

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 [256]*256listened 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 deter[257]*257mined 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 two to six 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 [258]*258he 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.

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Cite This Page — Counsel Stack

Bluebook (online)
182 A.D.2d 252, 589 N.Y.S.2d 171, 1992 N.Y. App. Div. LEXIS 10593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gerber-nyappdiv-1992.