| People v Carnevale |
| 2012 NY Slip Op 08831 [101 AD3d 1375] |
| December 20, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ashley N.Carnevale, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered March 10, 2011, convicting defendant following a nonjury trial of the crimes of murderin the second degree (two counts), attempted assault in the first degree, assault in the seconddegree and attempted robbery in the first degree (two counts).
On the evening of January 20, 2009, defendant and her husband, Anthony Carnevale III, wentto the home of an acquaintance, Ethan Button, in the Town of Windsor, Broome County toobtain pain medicine (Vicodin pills). In the past, Button had sold them Vicodin, which wasprescribed to him for a medical condition. Carnevale had spoken on the telephone with Buttonseveral times earlier that evening, during which Button indicated that he would not sell them anyVicodin that day. Upon arriving around 9:15 p.m., defendant and Carnevale were admitted intoButton's house, and Button and his houseguest, Jean Clark, who was on the telephone during theentire visit, declined defendant and Carnevale's request to sell them Vicodin. After conversingcordially with Button for 15 to 20 minutes, defendant and Carnevale left and got into their carparked in the driveway. A couple of minutes later, while defendant remained in their car,Carnevale knocked on the door to Button's house, asking for defendant's purse and, uponentering, Carnevale shot Button in the back. Button told him to take what he wanted. Carnevalethen shot Clark several times, killing her instantly. Carnevale apologized to Button, who gavehim a bottle of Vicodin, and blamed the shootings on Button's refusal to help them. Carnevale[*2]indicated that he could not leave any witnesses, and a struggleensued over the gun between Carnevale and Button, during which Carnevale was shot andinjured. Button called 911 around 9:50 p.m. Defendant, hearing the shots, moved into the driver'sseat of the car and drove away alone just as emergency personnel began arriving.
Defendant was taken into custody around 11:00 p.m. at the home of Carnevale's parents,where she resided with them, Carnevale, her son and their cousin. During an overnight policeinterrogation, partially recorded on DVDs and spanning at least seven hours and perhaps up to 11hours, defendant provided two signed statements. Initially, defendant acknowledged being awarethat Carnevale took a loaded gun when he reentered Button's house, after stating to her thatButton deserved to be "ripped off" for raising his prices. In her second statement, defendantultimately stated that she and Carnevale had planned to return and shoot both Button and Clark ifthey refused to "front" them pills during their first visit and that she had provided the ruse forCarnevale's return (i.e., her allegedly forgotten purse).
No request for a Huntley hearing or to suppress defendant's statements (seeCPL 710.20) was made by defense counsel in his omnibus motion.[FN1] Defendant's written statements were admitted into evidence at her nonjury trial and the DVDswere played for the factfinder and admitted into evidence. Following a nonjury trial at whichneither defendant nor Carnevale testified, defendant was convicted, under a joint indictmentcharging her with acting in concert with Carnevale, of two counts of murder in the second degree(intentional and felony) for the death of Clark, attempted first degree assault (Button), assault inthe second degree (Button), and two counts of attempted robbery in the first degree. Carnevaleentered a guilty plea to murder and attempted murder in October 2009. Defendant was sentencedto concurrent prison terms, with a maximum of 15 years to life with postrelease supervision, andnow appeals.
Initially, while we are not persuaded by defendant's contention that the verdict is against theweight of the evidence, we agree that a new trial is required because she was deprived ofmeaningful representation at trial (seePeople v Ennis, 11 NY3d 403, 411-412 [2008], cert denied 556 US 1240[2009]; People v Caban, 5 NY3d143, 152-156 [2005]; People v Benevento, 91 NY2d 708, 713-714 [1998];People v Hobot, 84 NY2d 1021, 1022 [1995]; People v Flores, 84 NY2d 184,187 [1994]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Baldi, 54NY2d 137 [1981]). Since an acquittal would not have been unreasonable, we "weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony" (People v Bleakley, 69 NY2d 490, 495 [1987][internal quotations and citation omitted]). Carnevale's mother testified that defendant andCarnevale were home that evening, defendant was irritable, in pain and arguing with Carnevaleregarding Button. She overheard Carnevale say that Button was going to be or deserved to beshot; defendant told him to be quiet. About an hour later, Carnevale's mother overhearddefendant ask Carnevale if he had shells or ammunition. They borrowed money for gas around8:00 p.m. and left, returning a short time later when Carnevale ran into the house briefly toretrieve a gun. Carnevale's father testified that he had refused his son's request that evening toborrow his gun; later, when defendant called home to report hearing gunshots inside Button'shome, Carnevale's father discovered that his gun and speed loader were missing. Police laterrecovered that gun at [*3]the scene, which was determined to bethe murder weapon. The speed loader was found in the front seat of Carnevale and defendant'scar. Carnevale's cousin also testified that he had overheard defendant and Carnevale arguing thatevening, defendant was in pain and, about 20 minutes later, he also refused Carnevale's request toborrow one of his guns. Button testified that he was not sure if defendant and Carnevale droveaway after their first visit or remained in their car in the driveway. He further testified thatCarnevale entered his home alone the second time and he observed defendant remain in thepassenger seat of the car until after the shooting, when she fled. En route to the hospital in anambulance, an injured Carnevale told a police sergeant that defendant had nothing to do with theshooting. Unmistakably, the crucial evidence that defendant shared Carnevale's intent and plan toshoot Button and Clark when he reentered the house came from the admission of defendant'sstatements to police. Viewing the foregoing evidence in a neutral light, we cannot say that theverdict was contrary to the weight of credible evidence (see People v Arnold, 85 AD3d 1330, 1332 [2011]).
"[W]hat constitutes effective assistance is not and cannot be fixed with precision" (Peoplev Rivera, 71 NY2d at 708), and requires consideration of whether "the evidence, the law, andthe circumstances of a particular case, viewed in totality and as of the time of the representation,reveal that the attorney provided meaningful representation" (People v Baldi, 54 NY2d at147). Of course, counsel's failure "to make a particular pretrial motion generally does not, byitself, establish ineffective assistance" (People v Rivera, 71 NY2d at 709; see Peoplev De Mauro, 48 NY2d 892, 893-894 [1979]; People v Miller, 11 AD3d 729, 730 [2004]). Here, however, we areconvinced that trial counsel's failure to make a pretrial Huntley motion to suppressdefendant's oral and written statements to police, at least on voluntariness grounds, or to argueinvoluntariness to the factfinder, among other deficiencies, deprived defendant of meaningfulrepresentation and a fair trial (see People v Caban, 5 NY3d at 152; People vBenevento, 91 NY2d at 713-714; People v Hobot, 84 NY2d at 1022; People vMiller, 11 AD3d at 730).
We begin by examining the evidence and testimony adduced at trial[FN2] to ascertain [*4]whether defense counsel had a colorable basis tomove to suppress defendant's statements to police and, if so, whether defendant has demonstrated"the absence of strategic or other legitimate explanations for counsel's failure to request a[Huntley] hearing" (People v Rivera, 71 NY2d at 709), or to argueinvoluntariness to the factfinder. It was undisputed that defendant did not reenter Button's homeor discharge a gun, that Carnevale reentered alone and shot the victims, and that defendant'sculpability is premised upon accessorial liability under Penal Law § 20.00. This requiredthe People to prove that defendant acted with the requisite intent to commit these crimes, i.e.,with the intent to kill Clark and cause serious physical injury to and to rob Button, and that shesolicited, commanded, importuned, or intentionally aided Carnevale to engage in such conduct(see Penal Law § 20.00). Defendant's statements to police, particularly her secondstatement, were clearly the crucial—arguably indispensable—evidence used by thePeople to establish that defendant shared Carnevale's plan and intent that he return and shootClark and Button if they refused to provide the drugs during the first visit.
The trial testimony is limited on the potential suppression issue given counsel's concomitantfailure to argue voluntariness of defendant's statements to the factfinder at trial. Theuntested trial record reflects that defendant, age 20, was handcuffed and taken intocustody from her home around 11:00 p.m., received Miranda warnings, was transportedto the police barracks and placed in an interview room, where she remained isolated duringprotracted but periodic partially recorded questioning until perhaps approximately 6:30 a.m. or aslate as 10:26 a.m. The first four pages of her statement (i.e., her first statement) were recorded ashaving been signed at 2:36 a.m., in which she admitted awareness that Carnevale, on reentry,took a loaded gun into Button's residence. The last (or fifth) page of defendant's statement (i.e.,her second statement), in which she relents and admits the shared plan to shoot and kill thevictims, is recorded as having been signed at 10:26 a.m., although the interrogating officer whotook the statement testified that it was signed at 6:26 a.m., a discrepancy of four hours. It wasconceded that the DVD did not capture the entirety of defendant's interrogation and statements,including when she was initially placed in the interview room. While defendant was apparentlyprovided a beverage and offered food, there is no indication that she slept during breaks in theovernight questioning, which extended at least seven hours (11:30 p.m. to 6:30 a.m.) if not 11 ormore hours; our review of the DVDs reflects that defendant arguably exhibited signs ofnoticeable fatigue, including frequent yawning and putting her head down appearing to be almostasleep.
Given the duration, timing and overall circumstances of the custodial questioning, whichinvolved the use of some deception,[FN3] we find that the defense had a colorable basis for [*5]moving tosuppress defendant's statements as coerced or on the ground that she did not voluntarily,knowingly and intelligently waive her privilege against self-incrimination or right to counsel(see Miranda v Arizona, 384 US 436, 457 [1966]; People v Mateo, 2 NY3d 383,413-414 [2004], cert denied 542 US 946 [2004]; People v Anderson, 42 NY2d35, 39-40 [1977]; see e.g. People vAveni, 100 AD3d 228, — [2012]; People v Thomas, 93 AD3d 1019, 1021-1028 [2012], lvgranted 19 NY3d 1105 [2012]; People v Miller, 63 AD3d 1186, 1187 [2009]; People v Cyrus, 48 AD3d 150,159-160 [2007], lv denied 10 NY3d 763 [2008]; People v Leonard, 59 AD2d 1,12-13 [1977]). Another important factor that should have been explored at a Huntleyhearing on the issue of voluntariness is whether defendant was in great pain or experiencingsymptoms of withdrawal, in view of the testimony regarding her mental and physical conditionthat evening (see People v Cyrus, 48 AD3d at 160; People v Miller, 11 AD3d at730). While we cannot make findings of fact or predict on this record whether the defense wouldhave succeeded in moving to suppress either or both of her statements had a full record beenmade (which might have included defendant's own testimony at such a hearing), we find thatthere were solid, colorable arguments to be made on such a motion that we do not find wouldlikely have been futile (see People vJackson, 48 AD3d 891, 893 [2008], lv denied 10 NY3d 841 [2008]) or wouldhave had "little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004]).
Turning to defendant's burden "to demonstrate the absence of strategic or other legitimateexplanations for counsel's failure to request a [Huntley] hearing" (People vRivera, 71 NY2d at 709) or to fully develop the circumstances of defendant's interrogationsat trial and argue involuntariness to the factfinder, we can perceive of no strategic reason orlegitimate tactical explanation for counsel's wholesale surrender to the admission of defendant'sincriminating statements (see People v Miller, 63 AD3d at 1187-1188; People vCyrus, 48 AD3d at 159-160; Peoplev Noll, 24 AD3d 688, 688-689 [2005]; People v Miller, 11 AD3d at 730; see also People v Johnson, 37 AD3d363, 364 [2007]). A review of the record reveals that the defense strategy was to argue thatdefendant did not reenter Button's home, participate in the shootings or ever possess the gun orammunition, and she remained a passenger, not the get-away driver, until after the shooting.Defense counsel argued that defendant was not responsible for Carnevale's actions and did notknow of or share his nefarious intentions upon reentering Button's home. Significantly, thedefense theory was supported in part by the trial testimony, namely, that of Button andCarnevale's family. More critically, the defense theory did not require admission of—andwas not supported by—defendant's incriminating second statement to the contrary, inwhich she admitted that if Button and Clark refused to sell them drugs, Carnevale "was going toreturn to the car and get the gun. Our plan was to shoot them both . . . . We decidedthey both had to be shot because we could not leave any witnesses." Defendant's statement,particularly the second one, directly contradicted the proffered defense theory that she lacked theshared intent and knowledge of that plan. Thus, counsel could not reasonably have concludedthat her statements—in their entirety or even predominantly—were exculpatory(cf. People v De Mauro, 48 NY2d at 894; People v Nguyen, 90 AD3d 1330, 1333 [2011], lv denied18 NY3d 960 [2012).
Indeed, defense counsel conceded almost immediately in his opening statement thatdefendant "made incriminating statements," and later that "[t]he only evidence" she knew what[*6]Carnevale planned came from her own statements. Whilecounsel pointed out that defendant initially denied knowledge of Carnevale's intentions,suggesting that the initial statement was somewhat exculpatory, there was no legitimate strategyemployed to explain her subsequent highly incriminating admissions in the second statement.Likewise, while counsel apparently believed there was a real question as to the voluntariness ofdefendant's statements, repeatedly alluding to a "12-hour" interrogation and briefly eliciting someof the factual circumstances surrounding that questioning which were suggestive ofinvoluntariness, during cross-examination of the interrogating police sergeant, counselinexplicably never argued the issue of the voluntariness of defendant's statements to thefactfinder (see CPL 60.45, 710.70 [3]; People v Hamms, 55 AD3d 1142, 1143-1144 [2008], lvdenied 11 NY3d 925 [2009]; seealso People v Combest, 4 NY3d 341, 347-348 [2005]).
Another troubling issue concerns Button's testimony that, when he asked Carnevale after theshooting why he had shot them, Carnevale said, "You knew we were in pain and you won't helpus out so we decided this is what we had to do" (emphasis added). This damagingstatement implicating defendant in Carnevale's plan was clearly hearsay offered to prove itstruth—i.e., that Carnevale (who did not testify at defendant's trial) and defendant togetherplanned and intended the shootings. However, no hearsay or confrontation clause objections wereregistered by defense counsel, and no hearsay exception appears to apply (see Davis vWashington, 547 US 813, 822 [2006]; People v Duhs, 16 NY3d 405, 408-409 [2011]; cf. People v Pagan, 97 AD3d 963,967-968 [2012]).
This is, then, a "rare case" in which it is possible to reject—from the trial recordalone—all legitimate explanations for counsel's failure, among others, to pursue acolorable suppression issue (People v Rivera, 71 NY2d at 709). The totality ofcircumstances reveals that defense counsel engaged in a prejudicial course of conduct, thecumulative effect of which deprived defendant of meaningful representation and a fair trial. Asthe harmless error doctrine is inapplicable "in cases involving substantiated claims of ineffectiveassistance" (People v Benevento, 91 NY2d at 714; see People v Ennis, 11 NY3dat 412; People v Miller, 63 AD3d at 1188), defendant is entitled to a new trial.
Lahtinen, Kavanagh and McCarthy, JJ., concur.
Rose, J.P. (concurring in part and dissenting in part). While I agree that the verdict was notcontrary to the weight of the evidence, I cannot agree that defendant was denied the effectiveassistance of counsel. As acknowledged by the majority, failure "to make a particular pretrialmotion generally does not, by itself, establish ineffective assistance" (People v Rivera, 71NY2d 705, 709 [1988]; see People vPerea, 27 AD3d 960, 961 [2006]; People v Longshore, 222 AD2d 941, 942[1995], lv denied 88 NY2d 850 [1996]). Nor is this, in my view, that "rare case" where asingle error of counsel results in the deprivation of the right to the effective assistance of counsel(People v Turner, 5 NY3d 476,478 [2005]). Even accepting that there is at least a colorable basis upon which a motion tosuppress could have been made, "[t]here can be no denial of effective assistance of trial counselarising from counsel's failure to 'make a motion or argument that has little or no chance ofsuccess' " (People v Caban, 5 NY3d143, 152 [2005], quoting People vStultz, 2 NY3d 277, 287 [2004]). The video recording of defendant's interview with theState Police effectively establishes that [*7]there is no basis tosuppress defendant's statements (seePeople v Hoffler, 74 AD3d 1632, 1636 [2010], lv denied 17 NY3d 859 [2011];People v Perea, 27 AD3d at 961; People v Clifford, 295 AD2d 697, 698 [2002],lv denied 98 NY2d 709 [2002]; People v Vecchio, 228 AD2d 820, 820-821[1996]). "[C]ounsel should not be criticized for failing to pursue a potentially futile endeavor"(People v Vecchio, 228 AD2d at 821).
Furthermore, while defendant's statement was no doubt a crucial piece of evidence, it was notthe sole basis for the People's case against her. The People also relied on the circumstantialevidence that tended to establish defendant's knowledge and participation in the plan to kill bothvictims in order to steal Vicodin pills. The record also reveals that counsel was otherwiseprepared, presented a plausible defense and meaningfully participated in the trial by givingcogent opening and closing statements, cross-examining key witnesses and raising appropriateobjections (see e.g. People vMcRobbie, 97 AD3d 970, 972 [2012]; People v Jones, 77 AD3d 1170, 1173 [2010], lv denied 16NY3d 896 [2011]). Accordingly, I would affirm the judgment. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Broome County for a new trial.
Footnote 1: Defense counsel's omnibusmotion included a motion to preclude admission of defendant's statements based upon a lack ofnotice (see CPL 710.30 [3]), which was denied.
Footnote 2: Notably, appellate courtstypically, out of necessity, evaluate the trial testimony to assess whether a defendantclaiming ineffective assistance of trial counsel had a colorable claim for a suppression hearing orto obtain suppression (see e.g. People v Rivera, 71 NY2d at 709; People v Miller,11 AD3d at 730). However, the relevant facts are often not fully or even partially developed onthe trial record precisely because of the absence of a motion to suppress or a suppression hearing.It is not always possible for appellate courts to reject all legitimate tactical explanations forcounsel's failure to pursue a colorable suppression issue, or to ascertain the futility of such amotion; likewise, the claim of ineffectiveness may rest on matters outside the record, leaving asthe appropriate remedy a CPL 440.10 motion (see People v Hobot, 84 NY2d at 1023;People v Rivera, 71 NY2d at 709; People v Love, 57 NY2d 998, 999-1000[1982]; People v Hamms, 55 AD3d1142, 1144 [2008], lv denied 11 NY3d 925 [2009]; People v Zeh, 289 AD2d692, 693-695 [2001]). Moreover, an appellate court cannot rely upon trial testimony to determinethe actual merits of a potential suppression issue, and we refrain from doing so here (seePeople v Millan, 69 NY2d 514, 518 n 4 [1987]; People v James, 67 NY2d 662, 664[1986]; People v Gonzalez, 55 NY2d 720, 721-722 [1981], cert denied 456 US1010 [1982]).
Footnote 3: The interrogating officertestified that he falsely told defendant early in the interrogation (12:16 a.m.) and several timesthereafter that Carnevale incriminated her in the shootings. The test for determining whetherdeceptive police tactics render a confession involuntary is whether they are "so fundamentallyunfair as to deny due process" (People v Tarsia, 50 NY2d 1, 11 [1980]; see People v Thomas, 93 AD3d1019, 1022 [2012], lv granted 19 NY3d 1105 [2012]).