The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
Pro se petitioner Eddie Gomez seeks a writ of habeas corpus from his
February 16, 1994 conviction, following a guilty plea in Supreme Court,
New York County, of first degree attempted murder and first degree
reckless endangerment, and sentence to concurrent terms, the longest of
which was fifteen years to life imprisonment. (Dkt. No. 2: Pet. ¶
1-2.) See People v. Gomez, 249 A.D.2d 237, 237, 672 N.Y.S.2d 681,
681 (1st Dep't), appeal denied, 92 N.Y.2d 852,
677 N.Y.S.2d 83 (1998): see also Gomez v. Duncan, 02 Civ. 0846,
2002 WL 1424584 at *1 (S.D.N.Y. July 1, 2002) (Peck, M. J.) (denying
the State's motion to dismiss the petition as time barred), report
& rec. adopted, Dkt. No. 22, slip op. (S.D.N.Y. Aug. 29, 2003)
Gomez's habeas petition raises three grounds: (a) his guilty plea was
not knowing and voluntary (Pet. at 28-33); (b) he was denied effective
assistance of trial counsel (Pet. at 4-27); and (c) he was denied
effective assistance of appellate counsel (Pet. at 34-36).
For the reasons set forth below, Gomez's habeas petition should be
Petitioner Eddie Gomez was arrested in the early morning hours of
February 22, 1993 after police received reports of gunfire at a
restaurant at 174th Street in upper Manhattan. After a shootout with the
two police officers who pulled over the car in which Gomez was a
passenger, Gomez was taken into police custody. He and the car's driver,
George Pena, each were charged with two counts of first degree attempted
murder, second degree assault, first degree reckless endangerment, and
three counts of criminal possession of a weapon. (See generally
Dkt. No. 2: Pet. at 4-10.)
Gomez's Pretrial Suppression Hearing
On December 2, 1993 and January 6, 1994, the court (Justice James Leff)
held a Wade-Huntley suppression hearing (Dkt. No. 29: 12/2/93
Suppression Hearing Transcript ["Tr."]) involving both Gomez and his
co-defendant George Pena (Tr. 2).
The Prosecution Case at the Suppression Hearing
In the early morning hours of February 22, 1993, New York City Police
Detective Israel Larraquente and fellow Detectives Patricia Powers and
Evelyn Delgato went to the 43rd Precinct in the Bronx to interview two
men whom Bronx police officers had arrested in connection with the
shooting of a police officer in Manhattan. (Larraquente: Tr. 6-7; Powers:
Delgato: Tr. 19.) Detective Larraquente testified that he,
Detective Powers and Detective Delgato observed Emergency Medical Service
personnel bandage Gomez's head, after which he was placed in a holding
cell. (Larraquente: Tr. 13, 20.) Detective Larraquente escorted Gomez
from the holding cell to an interview room in order to question him.
(Larraquente: Tr. 18.) Detective Delgato, in the presence of Detectives
Larraquente and Powers, read Gomez Miranda warnings in Spanish.
(Larraquente: Tr. 7-8; Delgato: Tr. 20-21, 26-27.) Gomez answered "yes"
in Spanish to each question, indicating that he understood his
Miranda rights. (Delgato: Tr. 22.) Detective Delgato gave Gomez
coffee, towels, and "stuff to clean himself before Gomez was questioned.
(Delgato: Tr. 24-25.) Ten to fifteen minutes later, Detective Larraquente
again read Gomez Miranda warnings in Spanish. (Larraquente: Tr.
8-9.) Gomez again indicated that he understood his Miranda
rights and stated that he was willing to answer questions about events
earlier that morning. (Larraquente: Tr. 11.)
Gomez stated that he had spent the evening of February 21, 1993,
drinking with Pena at a restaurant at 174th Street and St. Nicholas
Avenue. (Larraquente: Tr. 11-12.) Around midnight, he and Pena left the
restaurant and took a taxi to visit Pena's girlfriend, who lived on
Rosedale Avenue in the Bronx. (Larraquente: Tr. 12.) Because they had
been drinking, Gomez and Pena mistakenly got out of the taxi two blocks
away from their destination. (Larraquente: Tr. 12.) As they walked to
Pena's girlfriend's house, police officers approached, beat and arrested
them. (Larraquente: Tr. 12.)
Detective Larraquente testified that he had noticed that Gomez had
"whiskey breath," but Gomez still had responded coherently to all of the
questions he was asked. (Larraquente: Tr. 21 22, 27.) Although
Gomez's head was bandaged and his clothes were wet, Gomez never indicated
that he did not feel well nor did he request medical assistance.
(Larraquente: Tr. 14, 20, 22-24; Powers: Tr. 34-35; Delgato: Tr. 25.)
Gomez also never requested an attorney. (Larraquente: Tr. 14.) At
approximately 5:40 a.m., Detective Larraquente wrote down Gomez's
statement and asked him to sign it, but Gomez refused. (Larraquente: Tr.
Detectives Larraquente, Powers and Delgato escorted Pena to the
interview room, where Detective Larraquente read him his
Miranda warnings in Spanish. (Larraquente: Tr. 15, 24; Powers:
Tr. 29.) Pena answered "yes" to each question, indicating that he
understood his Miranda rights. (Larraquente: Tr. 15.) Detective
Larraquente interviewed Pena in Spanish, translating his responses into
English so Detective Powers, who did not speak Spanish, could record
Pena's statement. (Larraquente: Tr. 15-16; Powers: Tr. 29-30.)
Pena stated that shortly after 3:00 p.m. on February 21, 1993, he
arrived at Los Compadres Restaurant, where he spent several hours
drinking with friends. (Powers: Tr. 30.) Pena left the restaurant, picked
up money from a friend, returned to the restaurant and met his friend
"Seago," referring to Gomez. (Powers: Tr. 30-31.) Pena and Gomez decided
to visit Pena's girlfriend in the Bronx, taking a taxi to 174th Street
and Rosedale Avenue, a few blocks from her house. (Powers: Tr. 31.) As
they walked towards the house, police officers stopped and arrested them.
(Powers: Tr. 31.) Pena's clothes were wet during the interview; Pena told
the detectives that they were wet from the morning's snow. (Powers: Tr.
After these interviews were completed, Detective Daniel Rodriguez of
the Manhattan North Homicide Squad and Detectives Gennaro Giorgio and
Jose Caban of the 34th Precinct Homicide Squad went to the 43rd Precinct
to participate in the investigation into the shooting of a police officer
in Manhattan. (Caban: Tr. 45-46; Giorgio: Tr. 7-8; Rodriguez: Tr. 28.)
Detective Rodriguez, after talking with Detectives Larraquente, Powers
and Delgato, interviewed Gomez in the Detective Squad Room in the
presence of Detectives Giorgio and Caban. (Rodriguez: Tr. 28-29.)
At approximately 9:50 a.m., before questioning Gomez, Detective
Rodriguez again read Gomez Miranda warnings in Spanish.
(Rodriguez: Tr. 29-31, 36.) Gomez again indicated that he understood and
was willing to answer questions, and he signed a Miranda-waiver form.
(Rodriguez: Tr. 29-31.) Detective Rodriguez questioned Gomez in Spanish,
recording his answers in Spanish. (Rodriguez: Tr. 31-32.) Gomez told
Detective Rodriguez that he drove with three other men, Jorge
(co-defendant George Pena), Felix, and Gabby, to a restaurant on 173rd
Street and St. Nicholas Avenue at about midnight on February 22, 1993.
(Rodriguez: Tr. 32-33.) Gomez slept in the car while Jorge, Felix, and
Gabby entered the restaurant. (Rodriguez: Tr. 33.) Gomez's three
companions returned to the car about two hours later, then re-entered the
restaurant with Gomez because of a dispute over the bill. (Id.)
As Gomez and his companions turned to leave, Gomez overheard someone
say, "[p]ass me the gun" before hearing a shot fired. (Id.)
Pena told Gomez to retrieve a gun from underneath the passenger-side seat
of his car. (Id.) Gomez retrieved a 45 caliber pistol and
fired a shot in the direction of the restaurant manager, who was holding
a gun himself. (Id.) Gomez aimed "high" to avoid hitting
anyone. (Id.) Gomez entered the front passenger-side seat and
Pena drove the men to 175th Street and Audobon Avenue, where they picked
up a man
named Richard. (Id.) Richard took Gomez's seat in the
front, and Gomez moved to the back seat. (Id.) Richard picked
up the 45 caliber gun and loaded it. (Rodriguez: Tr. 34.)
Gomez noticed a flashing police light at the intersection of 181st
Street and Amsterdam Avenue. (Id.) Richard asked, "`[w]hat are
we going to do?,'" but before anyone answered, Richard fired at the
police as they got out of their car. (Id.) Pena also may have
shot at the police. (Id.) Pena drove them to the Bronx, where
the car broke down. (Id.) They got out of the car, and Richard
handed Gomez the 45 caliber gun, which Gomez unloaded, then reloaded
after Pena told him to do so. (Id.) Pena and Gomez fled in one
direction, while Richard ran in another. (Id.) Gomez put the
gun down next to a wall before being apprehended by the police.
(Id.) Pena told Gomez that he had dropped a nine millimeter
handgun into the Bronx River while crossing the river. (Rodriguez: Tr.
After Gomez finished describing what had occurred, Detective Rodriguez
asked him to review the statement he had written. (Rodriguez: Tr.
31-32, 35.) Gomez reviewed the statement, then signed each page of it.
(Rodriguez: Tr. 32, 35.) Detective Rodriguez testified that Gomez did not
appear drunk during questioning and never requested medical treatment.
(Rodriguez: Tr. 37.)
Meanwhile, Detective Michael Carew of the Police Scuba Team went to
174th Street and the Bronx River to retrieve a gun that was believed to
be in the river. (Carew: Tr. 36-37.) After speaking to officers at the
scene, Detective Carew and his team entered the river to search for the
gun but did not find it. (Carew: Tr. 36-37.) Another officer told
Detective Carew that one of the perpetrators would provide the gun's
exact location. (Carew: Tr. 37-38.) At around noon on February 22, 1993,
Detective Carew went to the 43rd Precinct to interview Gomez in order to
where the gun could be found. (Carew: Tr. 38.) Upon arriving at the
precinct, Detective Carew saw detectives escorting Gomez out the back
door in order to drive him to the river. (Carew: Tr. 38, 43.) Detective
Carew asked the detectives to wait so Gomez could describe the area to
him. (Carew: Tr. 38.) Gomez described the area, and told Detective Carew
that he had dropped the gun to the front and left of several abandoned
cars in the river. (Carew: Tr. 39.) Detective Carew did not administer
Miranda warnings to Gomez before speaking with him. (Carew: Tr.
42-43, 44.) After this conversation, detectives escorted Gomez to the
Bronx River, where he pointed out the area where he had dropped the gun.
(Carew: Tr. 39.) At approximately 12:30 p.m, Detective Carew searched and
found a nine millimeter semi-automatic gun in front of an abandoned car
in the river. (Carew: Tr. 41.)
Meanwhile, at around 6:00 p.m., Detectives Rodriguez and Caban drove
Pena to the 34th Precinct in Manhattan, where Detective Giorgio
interviewed him. (Caban: Tr. 46.) Pena told Detective Giorgio that he and
his friend Eddy (i.e., Gomez) had gone to Los Compadres
restaurant on 176th Street and St. Nicholas Avenue, where they had "more
than two" drinks. (Giorgio: Tr. 11.) While at the restaurant, Pena placed
a beer bottle on a glass-top table and a piece of the table broke off.
(Giorgio: Tr. 12.) The manager asked Pena to pay the bill for the broken
table, which Pena testified he did. (Id.) After paying, Gomez
said, "`[L]et's get out of here,'" and he and Pena left the restaurant.
(Id.) Pena did not hear any shots or breaking glass as they
drove away. (Id.) Pena drove north on Amsterdam Avenue, but
stopped the car north of 181st Street near the entrance to the
Cross-Bronx Expressway when he heard a police siren and saw "police
lights." (Giorgio: Tr. 12-13.) Gomez told Pena to "keep going," and as
Pena drove onto the on-ramp for the Expressway, Gomez
pointed a gun out the window and fired at the officers. (Giorgio:
Tr. 13.) Pena stopped the car and Gomez told him to run, but the police
apprehended them. (Id.) Pena signed a statement to this effect.
(Giorgio: Tr. 14-15.)
At 9:40 p.m. on February 22, 1993 at the 34th Precinct, Detective Caban
conducted a line-up involving six men, including Gomez. (Caban: Tr.
48-50.) Because Gomez had a bandage on his head, a similar bandage was
placed on the head of each of the five other men. (Caban: Tr. 49-50.)
Four witnesses viewed the line-up separately; the witnesses were two
restaurant workers, a cabdriver who had witnessed the shooting, and
Officer Ahearn. (Caban: Tr. 51-52.) Officer Ahearn recognized Gomez from
the car he had stopped on 181st Street and Amsterdam Avenue. (Caban: Tr.
53-54.)*fn1 One of the restaurant workers identified Gomez as one of the
men he had seen inside the restaurant the previous evening. (Caban: Tr.
54-55.) The other restaurant worker and the cabdriver did not recognize
anyone in the line-up. (Caban: Tr. 54.) Defense counsel did not
cross-examine Detective Caban about the lineups. (See Caban:
The Defense's Arguments at the Hearing's Conclusion
Neither Gomez nor Pena called any witnesses at the suppression hearing.
(Tr. 40.) In arguments before Justice Leff at the end of the State's
evidence at the hearing, Gomez's counsel argued that the gun recovered
from the Bronx River should be suppressed under the "fruit of the
poisonous tree" doctrine, as Gomez was not read his Miranda
rights immediately prior to speaking
with Detective Carew of the police Scuba Team. (Tr. 42-43) Defense
counsel argued that Gomez's written statements should be suppressed
because the waiver of his Miranda rights was coerced; Gomez's
clothes were soaking wet, he had bruises on his face and he had sustained
a head injury, and therefore he must have been in enough physical pain
such that he could not make a reasonable determination as to whether he
should waive his Fifth Amendment privileges. (Tr. 43-44.) As to the
line-up identification evidence, Gomez's counsel merely said he would
"rely on the record." (Tr. 44.)
The prosecutor responded that Gomez's written statements were given
voluntarily because he was twice read his Miranda rights and
voluntarily waived them. (Tr. 44.) The prosecutor pointed out that Gomez
had been read his Miranda rights an hour and ten minutes before
talking to Detective Carew, such that reading them to him again was
unnecessary. (Tr. 45-46.) The prosecutor also argued that although there
was some testimony indicating Gomez was injured, there was none to
suggest that he was in a great amount of pain or too drunk to knowingly
waive his Miranda rights. (Tr. 46.)
Justice Leff concluded that the lineups were not unduly suggestive, as
shown by the fact that some of the witnesses did not identify Gomez. (Tr.
54.) Justice Leff refused to suppress Gomez's statements to police,
finding that Gomez had been read the Miranda warnings and
understood his rights. (Tr. 54-55.) Justice Leff also concluded that
there was no causal connection between Gomez's injuries sustained at the
time of arrest and the statements he made to police hours
later. (Tr. 55.) He did, however, grant the defendants' motions to
sever their trials and hold two trials. (Tr. 54; see also Tr.
On January 27, 1994, after Justice Leff denied Gomez's suppression
motion, Gomez pled guilty to one count of first degree reckless
endangerment and two counts of first degree attempted murder, with an
agreed sentence of fifteen years to life. (Dkt. No. 23: State Ans. &
App. Ex. A: 1/27/94 Plea Transcript ["P."] at 12.) At the very beginning
of the plea proceeding, after off the record discussion, Justice Leff
informed Gomez that he had presided over co-defendant Pena's trial and
that if Gomez was convicted at trial, his sentence would be at least as
severe as Pena's:
THE COURT: I'm watching [Gomez] and saying, this
has to be the stupidest jerk I've seen on the
bench. He is charged with shooting a uniformed
police officer. He had a co-defendant. Mr.
George Pena. I already heard the case once, so I
know what the witnesses are going to testify
You had a gun. Pena had a gun. The
police officers came along after you shot up the
restaurant, and you knew they were police
officers. You had a gun and you shot a New
York City police officer. I don't think
whether you hit him or not that that's something
you take slightly.
The police officers were on duty. They went to
stop the serious felony that you and Pena
committed. Pena already went to trial. So I
heard all the testimony about the Shell
station; how you and Pena drove the car to the
Bronx; that you got out of the car, that you swam
the river; the cops arrested you. And the
witnesses all testified there was a white
[Oldsmobile] car . . .
It had bullet holes in it. And the jury went
out and they convicted Pena. Pena in effect said
all he did was drive the car, you did all the
shooting. . . .
I'm not going to sentence Pena for another three
weeks, but he was convicted of two counts of
attempted murder of a police officer; not one
police officer, but two police officers. . . .
My own feelings is that if Pena's
sentence is a consecutive sentence, 15
to life on each of them that that's not too
much of a sentence to give Pena. And if
you're convicted. I intend to give you the same.
Why you should get less. I don't know. But
that's what's going to happen. So you're entitled
to a trial. . . .
(P. 2-3, emphasis added.) Gomez, speaking through an interpreter,
told the judge that he was at the scene of the shootout with police, but
he "never shot at the police. . . . It was somebody else who escaped."
(P. 4.) Justice Leff responded, "You tell that to the jury. If they
believe your story, you walk out of here and worry about the Bronx case.
If they don't buy your story, I figure this is 1994, figure you get 30
years, to life, you'll be out 2023. That's a good thing." (P. 4.)
Gomez tried to convince Justice Leff to give him a more lenient
MR. GOMEZ: If you give 12 and a half to 25, I will
take it right now.
THE COURT: So, that's fine, but I'm not going to
give it to you. You want 15 to life, you can have
it, I'll give you a bargain. I'll give you
concurrent sentences. You take it in the next 10
minutes and if you don't, that's all right too.
MR. GOMEZ: Judge, I take the plea for 15 years if
you let me take it back later.
THE COURT: Why would you want to take it back?
MR. GOMEZ: So if it's possible I can serve less
THE COURT: Bring in the jury. I'm not going to sit
here and coax him.
(P. 4-5.) After Gomez's attorney noted that he needed a few more
minutes of discussion with the A.D.A. but that the judge's "help may have
resolved an unnecessary trial" (P. 5), Gomez interrupted,
telling Justice Leff that, "I'm asking questions to know. That's
what I'm doing. It's my right. I want to know and it's my right."
(Id.) Justice Leff responded:
THE COURT: Your right is to have a jury trial.
That's what we're going to have. When it's over,
you're going to listen to the jury decide whether
you're guilty of an attempt to shoot two
policemen. And if they say you're guilty, you
don't tell me what your rights are . . . Right
now you will have a jury trial. That's what we're
going to give you. Bring in a panel.
(P. 5-6.) Immediately following this statement, Gomez's attorney
informed Justice Leff that Gomez desired "to withdraw his plea of not
guilty previously entered and enter a plea of guilty . . . in full
satisfaction of the seven counts of the indictment." (P. 6-8.) Justice
Leff asked Gomez directly if he understood what his lawyer had just said,
to which Gomez responded, "Yes." (P. 8.) Justice Leff stated:
THE COURT: Now, one thing I want clear, if you
give up your right to have a jury trial today on
this case and you plead guilty to the first three
counts of the indictment, no way can you change
your mind after you make that plea. You understand
that? You can't say you didn't understand or you
didn't want to take the plea or somebody forced
you to. No way you can change your mind. You
(P. 8.) Gomez responded that he understood "perfectly well," but
that he wanted to make sure he still had the right to appeal (P. 8-9)
presumably from the denial of his suppression motion. Justice
Leff told him, "You can appeal. You can appeal. I don't know what you are
going to appeal, but you can appeal." (P. 9.) Justice Leff made sure that
Gomez understood the terms of his plea:
THE COURT: [W]hen you plead guilty, you are giving
up your right to pick a jury of 12 citizens who
will sit over there in those seats. They will
listen to the witnesses against you. You can help
choose those jurors. After the jury is selected,
you have a right to hear the witnesses who will
testify against you. There was some 15 or 18
witnesses who testified
at George Pena's trial, police officers, among
others, Ah[ea]rn and Torres, who were the two
police officers who were the victims in the second
and third counts [of the indictment]. You will
You would have a right to have your lawyer
question those witnesses. You would have a right
to testify yourself if you wanted to or if you had
any witnesses that you wanted to call, you could
call those witnesses. You understand that?
MR. GOMEZ: Yes.
THE COURT: You understand that after the case is
heard, it is submitted to the jury. And the jury
decides whether you're guilty of these charges
If you plead guilty, there is not going to be a
jury that decides this case. And by pleading
guilty, you are admitting to certain facts. You're
admitting as to the first count that on
February 22, 1993 under circumstances evincing a
depraved indifference to human life, you
recklessly engaged in conduct that created a grave
risk of death to another person by shooting a
loaded firearm to [sic] a crowded restaurant.
That's at 1263 St. Nicholas Avenue.
Did you do that?
MR. GOMEZ: Yes.
THE COURT: The second count charges an attempt to
commit the crime of murder in the first degree,
and so does the third count. When you plead
guilty, you're admitting to those counts; that
you're over 18 years of age; that on February
22. of 1993 with intent to cause the death of
Police Officer Patrick Ah[ea]rn and a Police
Officer Gonzalo Torres, you attempted to cause
their death and they were police officers as
defined in law and at the time that you fired
your weapon at them. You reasonable [sic]
should have known that they were police officers
and that they were in the course of performing
their official duties.
Specifically, what they were doing was attempting
to intersect [sic: intercept] the car that you
were in and Pena was in. It was an Oldsmobile that
you were driving away from the scene of the St.
Nicholas Avenue restaurant and away from the
Shell station on 181 Street.
Did you do that? Did you fire a gun at those
MR. GOMEZ: Do I have to admit it?
THE COURT: You certainly do. And if you
don't, the jury will decide.
MR. GOMEZ: Yes. I did it.
THE COURT: I'm sorry.
MR. GOMEZ: Do I have to admit it even if I didn't
THE COURT: If you didn't do it, let the jury hear
the witnesses. If you're claiming you didn't do
it, go to trial.
MR. GOMEZ: I'm only asking a question to know.
THE COURT: The question I'm asking you is whether
or not-1 just read what the charge was,
attempting to cause the death of Ah[ea]rn and
Torres. And I'm asking you whether you fired
a gun knowing that they were police officers.
MR. GOMEZ: Yes.
THE COURT: No question about that? Is there
anything you don't understand that you want to
have explained to you?
MR. GOMEZ: No.
THE COURT: Did Mr. Traub tell you that the
sentence that you're going to get is 15 years to
life on the second count and concurrent which
means served at the same time with the third
count, and you're going to get a sentence on the
first count of two and a third to seven, that's
MR. GOMEZ: Yes.
THE COURT: Except for that, did anybody
promise you anything to make you plead
MR. GOMEZ: No.
THE COURT: You want to take that plea now?
MR. GOMEZ: Yes.
(P. 9-12, emphasis added). Gomez's counsel
(Traub) and Assistant District Attorney Bosco
placed on the record the additional terms of
Gomez's plea agreement as to sentencing on
unrelated cases in the Bronx:
MR. TRAUB: Your Honor, there is some other
promises that the People will put on the record as
part of the plea agreement that the Court may not
be aware of, that Mr. Gomez has two pending
indictments in the Bronx. The People have
spoken to the Assistant [District Attorney] in the
Bronx and they are prepared to offer concurrent
time on the two cases that's [sic] pending in the
Mr. Gomez is also a suspect in a robbery out of
the 34th Precinct in Manhattan. I have been
contacted by the detectives in reference to that
case. The People will cover that as well, and he
will not be charged in reference to that case. The
People have also indicated that this plea out of
New York County will cover all known and unknown
cases that might arise against Mr. Gomez as long
as someone was not seriously hurt as defined under
the Penal Law, assault in the first degree. Those
are the additional promises the People have made.
THE COURT: You want to respond?
[A.D.A.] BOSCO: Yes, your Honor. What Mr. Traub
states is true. I want to state, Mr. Lima(ph), the
ADA in the Bronx who is handling the defendant's
two Bronx robbery indictments, he and I have
agreed that if the defendant decided to plead
guilty to those cases in the Bronx, the sentences
will run concurrent to this sentence.
As to the known and unknown robberies, I can only
say that we will cover known an[d] unknown
robberies where there wasn't serious
injuries in Manhattan. I personally cannot
speak for what may or may not happen in the Bronx.
I can't do that. I don't have the power to do
that. But other than that, that's the agreement
that is being entered.
(P. 13-14, emphasis added.) Immediately following this exchange,
Gomez's guilty plea was formally entered. (P. 15.)
On February 16, 1994, Justice Leff presided over Gomez's sentencing.
(Dkt. No. 23: State Ans. & App. Ex. B: 2/16/94 Sentencing Transcript
["S"].) Gomez's counsel (Traub) informed Justice Leff that there was a
"question about the honoring" of the terms of Gomez's plea agreement with
respect to the Bronx case. (S. 4.) Apparently, the Bronx A.D.A. had
offered Gomez a twenty-to-forty year sentence to run concurrently with
the Manhattan sentence. (Dkt. No. 2: Pet. at 31; S. 4.) Gomez rejected
this offer, alleging that it violated the Manhattan plea agreement. (Pet.
at 31.) Specifically, Gomez alleged that the Manhattan A.D.A. had
promised him that if he pled guilty in Manhattan, "any sentence imposed
in the Bronx cases would not be more than 15 years and would run
concurrent with the [Manhattan] sentence." (Pet. at 31.) The Bronx A.D.A.
told Gomez that he had only promised that, if he pled guilty to the Bronx
cases, the sentences would run concurrently with the Manhattan sentence,
and that he was under no obligation to offer Gomez a sentence less than
the one being offered in Manhattan. (Pet. at 31.) After being informed of
what had transpired in the Bronx, Justice Leff told Gomez's counsel:
THE COURT: I have no control over the Bronx.
He took a plea here with the understanding he was
going to get fifteen to life on each of two counts
and that he was going to be sentenced on the
reckless endangerment count.
I intend to sentence him.
MR. TRAUB: That may be, your Honor, except that
THE COURT: What does he want to do about it? He
wants his plea back? I'll be happy to give him his
plea back. He can start from Square One and go to
I already had a trial with Pena. And it's not
really a trial; it's an inquest.
We can go through the same trial again if he
doesn't want to take the fifteen to life. I assure
him he's going to get more.
MR. TRAUB: He says he wants his plea back.
[A.D.A.] BOSCO: Your Honor, People have no problem
THE COURT: No problem with that. Very good.
When do you want to try the case?
I'll tell you in no way will he get fifteen to
life. No way will he get fifteen. I don't care
what they do in the Bronx. He's going to get the
life sentence anyway.
If he wants the plea back, we'll try this case.
I'll tell him right now. I haven't sentenced Pena
yet. Pena went to trial. He's not getting the
Tell him that right now so it will be no surprise.
So that if he gets tried, I don't care what they
do [in the Bronx], twenty to life will be less
than what he's going to get from me.
He doesn't want it, that's fine. I've dealt with
wise guys. I look at this half-baked jerk sitting
here. He's going to go to state prison. As far as
I can see, he's never coming out. And he's telling
me what he wants to do.
He either takes the sentence we agreed upon or he
has his plea back and he'll never see the light of
day. He's going to die in the state prison. I'll
tell him that right now.
(S. 4-6.) Justice Leff asked Gomez's counsel and A.D.A. Bosco to
suggest dates for trial. (S. 7.) Gomez interrupted, telling Justice Leff,
"Do whatever you want. I haven't killed anybody. . . . "
(S. 7.) Justice Leff responded:
THE COURT: You want to impose the original
I recall very carefully telling him when I started
to take the plea that no way was he going to
change his mind. I don't [c]are what they do in
(S. 7-8.) Justice Leff instructed the clerk to arraign Gomez on the
predicate felony, and the prosecutor interjected:
[A.D.A.] BOSCO: Your Honor, let me just state
this: The original plea was on the condition
that he get concurrent time on his Bronx
Obviously you have no control over what happens in
the Bronx. Nor do I.
At the time of the . . . plea, I put on the
record my discussions I had with the Bronx
Assistant district attorney. And my understanding
at the time was defendant was going to get
concurrent time on this case and the Bronx case.
I just wanted to make that clear for the record.
If the Court wants to proceed with the sentencing,
People have no objection at this time.
On the other hand, if the Court wants to let the
defendant take his plea back, People have no
THE COURT: No, I'm going to proceed. I'm not going
to let him dictate the terms of the conditions on
which he is going to get sentenced.
(S. 8-9, emphasis added.) Justice Leff had the court clerk arraign
Gomez as a predicate violent felony offender for a prior conviction for
second degree attempted robbery. (S. 9-10.)*fn2
sentence, Justice Leff allowed Gomez's counsel to speak about the terms
of the plea bargain:
MR. TRAUB: People are correct in that it was a
The Assistant did indicate, at the
time of the plea, did indicate at the
time of the sentencing this was going to
run concurrent with two cases that's
running in the Bronx.
And that if in fact it doesn't happen,
that will give him a right of appeal
based upon that factor alone.
And I assume, knowing [A.D.A.] Bosco,
he will make all efforts to make the
Bronx aware of the fact of what took
place down here in Manhattan.
Other than that, I would ask the Court
to sentence Mr. Gomez in accordance with
what he indicated. He did indicate he
wanted to withdraw the plea. Court has
already ruled on that application.
THE COURT: He's got a right to say anything he
wants to now.
Want to say anything?
DEFENDANT: Judge, yes, it's okay. I plead guilty
because in fact I didn't do what they're
charging me with. But I understand, but
I can see, I can face a lot of time in
jail if they [the jury] find me guilty.
But they made a deal with me according to
my attorney that I wouldn't serve more
than fifteen years in jail.
THE COURT: That's not true.
DEFENDANT: When [sic] I went to the Bronx.
THE COURT: That's not true.
DEFENDANT: Give me my plea so I can go to trial
and you can give me a hundred years.
THE COURT: Anything else you want to say?
(S. 12-15.) Justice Leff sentenced
Gomez as follows:
THE COURT: Sentence of the Court on Count Number
One: two and a third to seven . . .
On the Second Count, attempted murder
of a policeman, sentence is fifteen to
And on the Third Count, attempted
murder of a policeman, the sentence
is fifteen to life.
I would like some record to be made
of the fact that this defendant is
going to state prison completely
oblivious to the fact he had a loaded,
operable gun and shot it at a New York
And nobody should get out of jail
ever who does that.
DEFENDANT: I didn't do that. I haven't shot any
police officer or anyone else.
THE COURT: All right. Then you tell that to the
Parole Board when you come up for the
first time in fifteen years that after
fifteen years you are denying that you're
guilty. And we can't rehabilitate an
[There is] nothing that prevents me,
when I sentence a defendant to fifteen
years to life, prevents me telling the
Probation Department that that sentence
is a life sentence, not a fifteen-year
The sentences I have indicated, two
and a third to seven, fifteen to
life, fifteen to life, they are to be
DEFENDANT: Judge, I don't have anything against the
sentence because that was the agreement.
But you have to understand that they
are not fulfilling the agreement
that they made.
THE COURT: That's your problem.
DEFENDANT: But that's not my problem. That's the
agreement I made. Those were the
I can't do anything. I don't have any
power to do anything.
THE COURT: Good. We'll see you.
MR. TRAUB: Actually, I think you have to indicate
he hasn't been sentenced yet in the
Bronx; that this is to run concurrent.
That was part of the agreement that
you can so endorse.
THE COURT: The Bronx Judge can do that.
MR. TRAUB: But that was part of the promise here,
that you would run it concurrent with
those. That was part of the agreement,
THE COURT: I will indicate that that was on the
record at the time of the plea.
The Bronx Judge could take into
account that the twenty-year sentence
in the Bronx is not going to make any
he's not going to get off on this
sentence for as long as he lives.
He can stay in State prison. It's a
life sentence I impose.
So if the Bronx D.A. wants to jerk
around, it isn't going to make any
You tell him it would be very
appropriate if he not interfere with the
carrying out of this sentence.
Gomez rejected the plea he was offered in the Bronx and went to trial
for those charges. (Dkt. No. 2: Pet. at 33.) After being convicted by a
jury, Justice John P. Collins on August 4, 1994 sentenced Gomez to twelve
and a half to twenty-five years, to run consecutively to the
sentence Justice Leff imposed on Gomez in Manhattan. (Dkt. No. 31: 8/4/94
Bx. Sentencing Transcript ["Bx."] at 14.)
During Gomez's sentencing in the Bronx, his lawyer, Alex Sanchez,
informed Justice Collins that Gomez was under the impression that the
sentence in the Bronx would run concurrent to the Manhattan sentence.
(Bx. at 9-10.) Sanchez told Justice Collins that he "personally
investigated that matter [him] self and apparently . . . that was the
impression that was actually conveyed to Mr. Gomez." (Bx. at 10.) Justice