| People v Fernandez |
| 2011 NY Slip Op 04386 [84 AD3d 661] |
| May 26, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Umberto Fernandez, Appellant. |
—[*1]
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered January 24,2007, convicting defendant, after a plea of guilty, of manslaughter in the second degree, andsentencing him to an indeterminate prison term of 3 to 9 years, modified, as a matter of discretionin the interest of justice, to the extent of reducing the sentence to time served, and otherwiseaffirmed.
At the time of the incident, defendant was a 52-year-old law-abiding U.S. citizen with nocriminal record. He lived with his sister and his mother, who suffers from multiple illnesses andis legally blind. In addition to caring for his mother, he supported his four young children, wholive in the Dominican Republic.
Luis Gomez and his group of friends were known for causing property damage andperpetrating acts of violence in the community. In fact, defendant had previously had problemswith Gomez. On this occasion, on December 21, 2005, defendant was returning home from workat 3:30 a.m., after having worked a long shift at his job at a restaurant. As defendant tried to enterthe building, he encountered Gomez and his group. Gomez insulted defendant and prevented himfrom entering his apartment building. Although defendant attempted to avoid a confrontationwith Gomez and his friends, Gomez took a metal object out of his pocket, presumably brassknuckles, and punched defendant in the face, breaking his nose and causing him to bleedprofusely. According to defendant's sister, defendant was bleeding "a lot," his face was "totallyswollen," and he was confused and uncoordinated.
Defendant was able to make his way up to his apartment, where he tried to clean up.Nonetheless, the blood continued to flow from his nose, and he was experiencing extreme pain,physical weakness and disorientation. Defendant then left his apartment to go to the hospital. Healso wanted to ask Gomez for an apology, fearing that if he did not confront Gomez, he would bethe target of more violent attacks by Gomez and his group. Defendant did not know whetherGomez and his group would be downstairs. Consequently, he equipped himself with a kitchenknife. He put the kitchen knife under his coat for protection, explaining later that it was because"that group was very tough and dangerous." He further stated that he did not intend to killanyone.[*2]
Upon returning downstairs, defendant found Gomez andone of his friends, Michael Fernandez, loitering in the vestibule. Gomez and Fernandez blockeddefendant from leaving the building. At that juncture, defendant twice asked Gomez for anapology. Gomez refused, and instead taunted defendant, "loosened his jacket like a boxer," raisedhis hands and lunged at defendant with one hand. Fearing another savage beating and assumingthat Gomez had a weapon in his hand, defendant pulled out the knife and lunged at Gomez'shand, stabbing him in the chest instead. Gomez and Fernandez took off running, and defendantreturned to his apartment. It is not clear from the record whether defendant was able at the timeto flee in safety.
Defendant did not pursue Gomez or Fernandez. Instead, he returned to his apartment withoutfull knowledge of the extent of the injuries he had inflicted on Gomez. Nonetheless, he was insuch a state of shock following the altercation that the police found him in a closet in a fetalposition, crying and bleeding profusely.
On October 20, 2006, defendant was convicted, after a jury trial, of second-degreemanslaughter. On November 17, 2006, Justice Berkman sentenced him to an indeterminateprison term of 5 to 15 years. In a thorough opinion by Justice McGuire, this Court reversed thejudgment, and remanded for a new trial, on the ground that the trial court failed to chargecriminally negligent homicide as a lesser included offense (64 AD3d 307 [2009]). Subsequently,defendant pleaded guilty to manslaughter in the second degree and was sentenced to 3 to 9 years.When the plea was entered, the prosecutor volunteered that, while his policy was to opposeparole in most cases, he would not do so in this case.
We now reduce defendant's sentence to time served (see People v Rosenthal, 305AD2d 327, 329 [2003] [this Court "possesses broad, plenary powers to modify a sentence that isunduly harsh or severe under the circumstances, in the interest of justice, even though thesentence falls within the permissible statutory range"], citing People v Delgado, 80 NY2d780, 783 [1992]; see also CPL 470.15 [2] [c]; People v Martinez, 124 AD2d 505,506 [1986] [in deciding what sentence is appropriate, this Court must consider various factorsincluding "the nature of the crime, the defendant's circumstances, the need for societal protection,and the prospects for the defendant's rehabilitation"]).
Before this incident, defendant had lived a productive, crime-free life, caring for andproviding support for his elderly and infirm mother, as well as his four children (see People vEaston, 216 AD2d 220, 221 [1995], lv denied 87 NY2d 845 [1995] [notingdefendant's lack of criminal record, excellent employment history, support for three youngchildren, and the exceptional nature of the incident as the basis for a sentence reduction]). Therewere 65 letters submitted to sentencing court on behalf of defendant. The common themes inthese letters were defendant's compassion, decency, commitment to family, hard work, peacefulnature, positive influence on others and disbelief that he could have committed the crime ofwhich he was convicted. We believe that, in causing Gomez's death, defendant acted wholly outof character. He was an older man in extreme pain and in fear of an unrepentant young man whoterrorized him and committed a vicious act of violence. Defendant did not go downstairs with theexpress intention of killing Gomez. Indeed, when he encountered Gomez, defendant simplyasked for an apology. Defendant wanted Gomez to accord him the basic level of respect anddignity to which everyone is entitled. He wanted to be able to live without fear. Unfortunately,defendant not only failed to acquire Gomez's respect, but, also, it appears that he was about to besubjected to a further beating at the hands of Gomez. In drawing his knife, defendant acted out ofterror.
We recognize that this is a tragic case in which a young man was killed. However, in [*3]light of the circumstances discussed above, we believe that a prisonterm of 3 to 9 years is unduly harsh. Defendant has already been incarcerated for more than fiveyears. This period of imprisonment is more than sufficient punishment for the aberrational act hecommitted. Concur—Catterson, Acosta and Manzanet-Daniels, JJ.
Tom, J.P., and Sweeny, J., dissent in a memorandum by Sweeny, J., as follows: I dissent.
This defendant, with the advice of counsel, entered into a negotiated plea. It was discussedwith and accepted by a very experienced criminal judge, who, having already presided over thetrial in this matter, was fully familiar with all the facts and circumstances. After a thorough voirdire and presumably taking into consideration all the mitigating factors the majority relies on, thejudge accepted the plea, and defendant was sentenced exactly as promised.
The facts are virtually undisputed. This defendant, returning to his apartment after allegedlybeing "terrorized" by the victim and his friends, ignored the entreaties of his sister, and not onlywent back downstairs to demand an apology from his attackers, but did so armed with a 10-inchserrated kitchen knife, "the biggest knife [he] could find." The end result of their confrontationwas the death of the victim, 22-year-old Luis Gomez, from a three- to four-inch knife wound.
The broad, plenary power of an appellate court to modify a sentence, especially a negotiatedone, may be exercised only where the sentence was unduly harsh or severe (see People vDelgado, 80 NY2d 780 [1992]; People v Suitte, 90 AD2d 80 [1982]; CPL 470.15 [2][c]), and the case must present extraordinary circumstances to warrant a reduction (People vMcNeil, 268 AD2d 611, 612 [2000]; People v Bass, 261 AD2d 651 [1999]). Eventhen, the court's intrusion into that area should be rarely exercised (People v Sheppard,273 AD2d 498, 500 [2000], lv denied 95 NY2d 908 [2000]). No such circumstances existhere.
Defendant, rather than face a retrial that, as the judge fully explained, would include thelesser charge of criminally negligent homicide, made a reasoned decision to avoid a potentiallylonger sentence and accept the offer of 3 to 9 years, a lesser sentence than the one imposed afterthe trial. Such a sentence for the death of a young man was fair and does not provide a sufficientbasis for the extraordinary exercise of interest of justice jurisdiction.