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GOMEZ v. DUNCAN

January 27, 2004.

EDDIE GOMEZ, Petitioner, -against- GEORGE W. DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent


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) (Preska, D.J.). Page 2

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 DENIED.

  FACTS

  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: Tr. 28-29; Page 3 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.) Page 4

  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. 12-13.)

  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. 31-33.) Page 5

  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 Page 6 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. 35.)

  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 learn Page 7 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 Page 8 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: Tr. 6.)

  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 Page 9 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.)

  The Judge's Decision

  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 Page 10 later. (Tr. 55.) He did, however, grant the defendants' motions to sever their trials and hold two trials. (Tr. 54; see also Tr. 49-54.)

 Gomez's Plea Allocution

  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 tO
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. . . . Page 11
 
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 sentence:
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 time maybe.
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, Page 12 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 understand that?
(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 Page 13 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 hear them.

 
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 against you.
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. Page 14 Nicholas Avenue restaurant and away from the Shell station on 181 Street.
 
Did you do that? Did you fire a gun at those police officers?
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 do it?
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 also concurrent?
  MR. GOMEZ: Yes. Page 15
 
THE COURT: Except for that, did anybody promise you anything to make you plead guilty?
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 Bronx.
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 Page 16 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.)

 Gomez's Sentencing

  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. Page 17

  I intend to sentence him.

 
MR. TRAUB: That may be, your Honor, except that part —
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 trial.
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 with that.
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 minimum.
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. Page 18
 
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 sentence?
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 the Bronx.
(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 case.
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 objection. Page 19
 
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 Before entering 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 negotiated plea.
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. Page 20 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 life.
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 City cop.
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 innocent man. Page 21 [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 sentence.
 
The sentences I have indicated, two and a third to seven, fifteen to life, fifteen to life, they are to be concurrent sentences.
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 conditions.
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, Your Honor.
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 difference because Page 22 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 difference.
You tell him it would be very appropriate if he not interfere with the carrying out of this sentence.
(S. 16-20).

 The Bronx 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 Collins ...


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