People v. Pilotti (127 A.D.2d 23, 1987)

OPINION OF THE COURT

Fein, J.

This is an appeal from an order of the Supreme Court, Bronx County (Lawrence Tonetti, J.), entered October 21, 1985, denying defendant’s motion to vacate the judgment of conviction and 2 Vi- to 5-year sentence as a second violent felony offender, rendered against him on April 3, 1978, on his plea of guilty to criminal possession of a weapon in the third degree (Manuel Ramos, J.). The sentence was to be served concurrently with an 11- to 22-year sentence on defendant’s June 6, 1977 conviction on a plea of guilty to manslaughter in the first degree (Max Bloom, J.).

Defendant was arrested on April 9, 1977, along with Alfred Peruso and Louis Giongetti. Defendant and Giongetti were each booked for the murder of Jose Melendez, a drug dealer, and for possession of a weapon. The homicide had occurred an hour to an hour and a half prior to the arrests. Individuals in one vehicle had been observed shooting at the occupants of another vehicle. The police were furnished with the license plate number of the getaway vehicle, and traced its owner to a Bronx address. The police staked out the address, and after a period of time they observed defendant, Giongetti and Peruso leaving the building. Defendant entered a taxi. The other two departed in the opposite direction.

When defendant entered the taxi, he was carrying a coat over his arm. As a police officer approached and ordered defendant out of the cab, defendant reached for the coat. The officer directed defendant to leave the coat. The officer then went to the cab, lifted out the coat and discovered underneath it a .357 Magnum Colt revolver wrapped in a towel. Giongetti and Peruso were also arrested and a gun was found in Giongetti’s possession. Although defendant was booked for murder and weapons possession, he was indicted in 1977 only for possessing the .357 Magnum which was found in the cab.

On February 28, 1978, following denial of defendant’s suppression motion, he pleaded guilty to criminal possession of a weapon in the third degree, admitting that he possessed the loaded .357 Magnum. He was sentenced as promised to a term of from 2Vz to 5 years, to run concurrently with his sentence of 11 to 22 years previously imposed by Justice Bloom upon defendant’s conviction on a plea of guilty to manslaughter in the first degree for the killing of Wilfredo Figueroa.

On his prior appeal of the weapons possession conviction, defendant challenged only the pretrial denial of his motion to suppress the gun. This court unanimously affirmed his conviction without opinion on December 20, 1979, sub nom. People v Dominick Pilotto (73 AD2d 846, lv denied 49 NY2d 895, cert denied sub nom. Pilotti v New York, 449 US 870).

At the hearing on defendant’s motion to vacate the judgment and sentence based upon his guilty plea to weapon possession, which is the subject of this appeal, defendant and his two prior attorneys, Lawrence Dubin and Murray Rich-man, testified. Dubin, who had represented defendant after his April 1977 arrest for the Melendez homicide and for criminal possession of a weapon, testified that he had moved to suppress the .357 Magnum and to dismiss the possession indictment, and made discovery motions. He testified that he and defendant had frequently discussed the possible connection between the weapon found in the taxicab and the Melendez homicide, and that determining whether such a link existed was "top of his [i.e., defendant’s] list.”

Two DD-5 police reports regarding the Melendez homicide which had been furnished to Dubin, dated April 14 and 15, 1977, were received in evidence. Neither established a connection between defendant’s gun and the homicide. Actually, the April 15 report stated that Detective Simmons of the Ballistics Unit "Believes all bullets and shells recovered [were] used from guns other than the two recovered” (emphasis supplied). Dubin testified that he was affirmatively told by the Assistant District Attorney that no connection had been established between the gun and the Melendez homicide.

However, a third ballistics report, apparently dated June 2, 1977, concluded that the "bullet from deceased matched bullet fired from Pilettis [sic] gun.” Dubin stated that he never received a copy of this report, although it was discoverable under CPL 240.10 and 240.20 (1) (c). Dubin asserted that it was the withholding of this critical evidence, combined with the contents of the reports disclosed and statements made by the Assistant District Attorney, which led him and defendant to believe no link had been established between defendant and the Melendez homicide. Dubin testified that he never would have recommended that defendant plead guilty on the gun charge had he been aware of the withheld report. Defendant testified to the same effect.

Richman testified that while preparing for the Melendez murder trial, which was to start October 27, 1980, both defendant and Dubin told him they had been informed that no link existed between defendant and the Melendez homicide. Richman testified that he and defendant first learned of the ballistics match in October 1980, upon being given notice that the People intended to introduce defendant’s plea allocution on their direct case. Richman’s motion to suppress the statement was denied.

The Assistant District Attorney who presented the People’s case at the Mapp hearing on the gun possession charge and at the entry of defendant’s guilty plea for gun possession after denial of the motion to suppress was not the one originally assigned to the case.

At the hearing subject of this appeal, he asserted that he understood, from his discussions with the Assistant District Attorney originally assigned to the case and Dubin (defendant’s lawyer), that defendant’s gun was connected with a homicide. He further asserted that in plea discussions it was made clear that defendant could plead guilty to possession of the gun and receive a sentence of 2 Vi to 5 years, concurrent with the 11- to 22-year term imposed by Justice Bloom for the Figueroa homicide, or he could receive 2 Vi to 5 years to run consecutively with the 11- to 22-year term if he wished the plea to cover the Melendez homicide for which he had not been indicted. The later assigned Assistant District Attorney testified that defendant chose the first alternative because "They don’t have me and they never will have me and I am not going to be involved even for saying it is being covered.” He claimed that he made no representations to Dubin as to any link between the gun and the homicide. However, he admitted that he did not give Dubin a copy of the June 2, 1977 DD-5 report which established the link. He asserted that Dubin had indicated his awareness that the gun was so connected.

In a memorandum to his bureau chief, dated March 2, 1978, which was after defendant’s guilty plea but prior to sentence, he asserted that defendant originally "did not wish to plead solely to the gun charge without covering an unindicted homicide”. The memo added that "Although the attorney agreed” to the offer of consecutive time, "his client did not wish the unindicted homicide to be covered”, but would plead if concurrent time was offered. The memo concluded with the statement that the People might have a problem if defendant were indicted for the homicide without obtaining evidence additional to what they already had: "Good faith and the argument that we attempted to prove the homicide b[y] bootstrapping the gun charge may very well be a case of first impression in this State.”

The People also introduced into evidence the transcript of the June 6, 1977 sentencing proceeding before Justice Bloom on the Figueroa homicide. Defendant had pleaded guilty to manslaughter in the first degree on April 15, 1977. In an effort to convince Justice Bloom to permit him to withdraw his plea, he asserted, among other things, that he had been unfairly harassed by prosecutors. He related alleged threats and false claims made by the People regarding the Melendez investigation at the time of his original arrest. He told Justice Bloom that the prosecutors, in order to induce a plea in the unrelated Melendez homicide, had told him that the gun matched the bullets involved in the Melendez shooting, despite the fact that later events, the April DD-5 reports and his attorney’s information revealed this had not been true:

"the defendant: It isn’t a lie. It’s a fact. I could bring my— I could bring my prior attorney here to prove it. He told me— [the originally assigned Assistant District Attorney] told me that 'they caught you with a gun in your belt and that you’re going to get twenty-five to live [sic]. You got the ballistics from Jose Melendez, matched with the gun that they found in the belt’ when, in fact, I wasn’t indicted for the case. Jose Melendez had nothing to do with this case and he told me, T think you should take this plea because I could get it all covered together.’ He told me I was guilty. I didn’t get indicted for the case. I was threatened to take the plea.

"the court: You’re talking about something that’s not before me and I don’t care what happened in that case.

"the defendant: They brought it up. They brought it up. He said I was lying. I ain’t lying. I could prove it.”

The People asserted that this excerpt proved that defendant knew of the ballistics link. The defense argues that this clearly misinterprets the statement which was made on June 6, 1977 before Justice Bloom with respect to the Figueroa homicide.

It is notable that the Assistant District Attorney originally assigned to the case and the bureau chief were present on behalf of the People when defendant made this statement to Justice Bloom. Nothing was said by them about the June 2, 1977 ballistics report, the only link to defendant’s gun. It is noted that the hearing court’s decision in our case inaccurately quoted defendant as saying "He told me * * * [the Assistant District Attorney later assigned] told me that they caught you with the gun in your belt and that you’re going to get 25 to life.” The transcript, which is part of the record, quotes defendant as referring to the Assistant District Attorney originally assigned, as above indicated.

It is plain that defendant was referring to threats allegedly made before the withheld ballistics report even existed, threats made at a time when the link had not been established. It is also undisputed that no gun was ever found in defendant’s belt.

Nonetheless, Criminal Term accepted the later assigned Assistant District Attorney’s testimony that this statement by defendant was proof that defendant knew the link had been established. Criminal Term did not comment on the order of events or the withholding of the June 2 ballistics report, but concluded that defendant’s statements to Justice Bloom indicated that defendant "knew that the gun matched the ballistics evidence that they had from the deceased”. It is notable that there was no disclosure during the Figueroa sentence proceedings before Justice Bloom on June 6, 1977, that there had been a ballistics report rendered four days earlier linking defendant’s gun to the Melendez homicide. Nonetheless, Criminal Term found as a fact, in reliance on this statement by defendant, that he knew there was a ballistics tie of the gun to the Melendez homicide. Thus it ruled, as a matter of law, that there was no fraud or misrepresentation and denied defendant’s motion to withdraw the plea in this case.

It is palpable that defendant’s plea was invalid and that the hearing court’s contrary finding was in error. The suppression or withholding of the June 2 DD-5 report clearly misled defendant.

CPL 440.10 (1) provides, in part:

"At any time after the entry of a judgment, the court * * * may * * * vacate such judgment upon the ground that * * *

"(b) The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor”.

As stated by the Court of Appeals in People v Picciotti (4 NY2d 340, 344), "There can no longer be doubt that coram nobis lies to correct a judgment 'based upon trickery, deceit, coercion or fraud * * * in the procurement of the plea’ * * * '[T]o deny a person an opportunity to be heard on proof that he was defrauded or coerced into pleading guilty to a crime would impair a constitutional right’.” (Quoting from Matter of Lyons v Goldstein, 290 NY 19, 25-26; see, Brady v United States, 397 US 742, 757.)

Although factual findings by the hearing court are not to be lightly discarded, plainly unjustified or clearly erroneous findings are not to be accepted (People v Quinones, 61 AD2d 765). The principle is well stated in People v Lopez (95 AD2d 241, 252-253): "In reviewing a factual determination based largely upon an assessment of credibility, the determination of the trier of facts is ordinarily accorded great weight * * * However, this rule of deference must give way when the appellate court determines that the fact findings under review are against the weight of the evidence * * * which is itself a factual determination (Cohen v Hallmark Cards, 45 NY 2d 493). If the determination is made after a Bench trial and the Appellate Division finds that the trier of fact incorrectly assessed the evidence, the Appellate Division has the power to make new findings of fact (CPL 470.15, subd 1 * * *). Weight of evidence analysis involves a discretionary balancing of many factors based upon the court’s commonsense reaction to the evidence, in light of its collective experience * * * If a different finding from that of the trial court is not unreasonable, then this court must weigh the relative probative force of conflicting testimony and the relative strength of any inferences that may be drawn from such testimony”.

It is obvious that defendant and his experienced attorney had concluded, as they surely must have, that defendant, by pleading guilty, would not be admitting possession of a weapon that would provide the only nexus between himself and the Melendez homicide. Especially significant is the language in the April 15, 1977 DD-5 report: "Det. Simmons Ballistics unit * * * [b]elieves all bullets and shells recovered used from guns other than the two recovered.” The April 14 report similarly did not link the gun to the murder. The June 2, 1977 DD-5 report, which asserted the link, was never disclosed until the Melendez murder trial.

It is notable that the 1977 indictment was only for possession of the .357 Magnum. The indictment for the Melendez homicide did not come until two years later.

Based on this evidence and discussions with the prosecution, defendant and his attorney were assured in 1977 that no link had been established between the gun and the Melendez homicide. Nevertheless, the hearing court relied heavily on the testimony to the contrary of the Assistant District Attorney later assigned, albeit acknowledging that defendant’s attorney, Dubin, was a long-time and well-experienced criminal attorney. If his testimony is credited as to his conversations with Dubin, it is incredible that Dubin said nothing on the record at the weapons plea to protect himself from a future claim of ineffectiveness. It is inexplicable why any criminal defendant or any attorney, experienced or not, would provide the grounds for a murder indictment, which would be the case if either knew a link between the gun and the homicide had been established. They simply were not provided with a copy of the June 2, 1977 ballistics report.

It is also unexplained why the People were so quick to allow the plea to possession of a loaded weapon with the understanding that the sentence would be concurrent to a sentence imposed by Justice Bloom for an earlier homicide if they knew, as the later assigned Assistant District Attorney’s memorandum stated, that the only evidence available was merely "Good faith and the argument that we attempted to prove the homicide b[y] bootstrapping the gun charge”.

It is notable that the People’s answering papers on defendant’s motion asserted only that defendant did not rely on the lack of evidence linking the weapon to the murder, and argued only that the withheld ballistics report was not discoverable. However, at the hearing, the testimony of the later assigned Assistant District Attorney, claiming that defendant had been informed of the connection, was relied upon.

The hearing court also believed that the proceedings before Justice Bloom evidenced defendant’s knowledge of the ballistics link. I suggest that the only fair reading that can be given to the statements by defendant is that he claimed he had been deliberately misled, without basis, by the Assistant District Attorney. Surely he had to have a basis for his statement before Justice Bloom. The alternatives suggested in the dissent are pure speculation. Defendant made the statement before Justice Bloom. It was relied upon in the decision of the hearing court, now on appeal, which the dissent concedes was erroneous. It is also notable that the ballistics report linking the gun to the Melendez homicide did not come into existence until almost seven weeks after the plea in the Figueroa case was taken before Justice Bloom on April 15, 1977, and four days before the sentence was imposed on June 6, 1977.

The facts and the credible evidence permit only one conclusion. Defendant was misled by the withholding of a critical, discoverable document. Its contents were never disclosed prior to his plea to weapons possession. Defendant was lured into the plea by such conduct. The conclusion of the hearing court adopts the patently incredible position that defendant, a criminal with long experience, and his attorney, a lawyer of great experience, would agree to the plea knowing that it would provide the only link to a homicide indictment.

Such a finding need not be followed upon appeal (People v Bezares, 103 AD2d 717). As recently observed by Judge Kaye, writing for a unanimous Court of Appeals in People v Thomas (68 NY2d 194, 199), ”[I]t is * * * plain that a declarant would rarely consent to a plea bargain if it did not in some sense also serve his or her penal interests.”

The plea here served no such interest. It was actually used against defendant’s penal interest on the subsequent Melendez trial. There the prosecution agreed not to use defendant’s admission unless he took the stand and denied possession. This result was plainly to be anticipated when he took the plea. Equally plain is the conclusion that he would never have taken the plea and made the concomitant admission had the existence of the link been made known.

The dissent concedes that there is no basis in the record for the findings of the hearing court that defendant and his lawyer knew, at the time of the plea, that the gun had been ballistically connected with the Melendez homicide and that this had been made known to them by the District Attorney. On June 7, 1977, in connection with defendant’s unsuccessful motion to withdraw his plea in the Figueroa case, he asserted that prior to the plea in that case the Assistant District Attorney stated that defendant had been caught with a gun in his belt, which had been ballistically connected with the Melendez homicide. It is clear, as the dissent concedes, that the District Attorney’s office did not learn of the gun’s ballistic connection to the Melendez homicide until almost two months after the statement attributed to the Assistant District Attorney.

It is plain that prior to the Figueroa sentence proceeding assertions had been made by an Assistant District Attorney to defendant or to his lawyer at the time that there was such a connection, albeit there was then no such evidence. As has been noted, it is equally plain that there was never any evidence that defendant had been caught with a gun in his belt. The only weapon tied to defendant was the gun found under his coat on the seat of the taxicab.

The hearing court’s reliance on this statement by defendant, as a foundation for its determination, is conceded by the dissent to have been erroneous. However, the dissent ignores the pertinent point that defendant and his lawyer were misled, deliberately or not, in a manner which ultimately succeeded in misleading the hearing court. The plain fact, conceded by the dissent, is that all of the findings of the hearing court are without basis in the record.

The dissent attempts to overcome these errors by undertaking what it describes as "a de novo examination of the record * * * to make new findings.”

The dissent then goes through an analysis of the events and speculates at length as to what was said and thought by defendant, his lawyer and the District Attorney. In the course of that analysis, the dissent concludes that "when the case was presented to the Grand Jury, the District Attorney did not know that the gun, for the possession of which Pilotti had been indicted, was ballistically connected with the Melendez homicide.”

The dissent further concedes the central issue now here: "From a study of the hearing record, it is clear that the defendant, and his counsel, did not in fact know at the time the plea was entered, that the gun had been ballistically matched to the Melendez homicide.”

The dissent also properly finds merit in the contention of defendant and his lawyer that they were misled because the lawyer received two DD-5s (police reports) dated April 14 and April 15, 1977, reporting no ballistics connections had been found, and because of the failure of the District Attorney to turn over to defense counsel the June 2, 1977 DD-5 reporting that defendant’s gun matched a bullet found in the body of Melendez. Whether the failure to turn that report over was purposeful or deliberate is not dispositive, despite the contention to that effect in the dissent.

It is not necessary to deal with the repeated assertion that vacatur of the plea would be unfair to the Assistant District Attorneys involved. It is necessary only to determine whether their actions misled defendant, which the dissent plainly concedes. This is the problem with which we must deal.

Nor need we explore what course the defense lawyer would have taken had he known the facts. The hearing court concluded that the lawyer knew the facts and allowed the plea to stand because of that. The District Attorney, in arguing this case before the hearing court and before this court, has persisted in the position that the lawyer had such knowledge. Such a conclusion requires a determination that a highly qualified defense lawyer was totally incompetent in advising his client in this case and failed to make a record of his reasons for doing so. This is best demonstrated by the following quote from the dissent, which concedes that the defense lawyer was never apprised of the ballistics test result: "What makes the defense thesis even more implausible is the reality that from the standpoint of the alternative plea bargain proposed by the District Attorney’s office to defendant, it was important to the District Attorney that the defendant and his counsel know that Pilotti’s gun was ballistically connected to the Melendez homicide. The proposed plea bargain was in the alternative — 2 Vi to 5 years to run consecutively to the Figueroa sentence if the plea covered the Melendez homicide, and 2 Vi to 5 years to run concurrently with that sentence if it did not.”

How this squares with the concession by the dissent that at the time of the plea neither defendant nor his lawyer knew of the gun connection does not appear. There is a plain contradiction between the testimony of defense counsel Dubin and the Assistant District Attorney later assigned before the hearing court. The Assistant District Attorney testified that Dubin made it clear that he knew that defendant’s gun had been ballistically connected. Dubin testified that the Assistant District Attorney explicitly told him that there was no report establishing a ballistics connection between the gun and the homicide.

The dissent seeks to shake Dubin’s credibility by referring to his inaccurate recollection that his client’s plea included a consecutive 2 Vi- to 5-year sentence, and his failure to recall the alternative plea bargain offered by the District Attorney. It is notable that on the second day of Dubin’s testimony he indicated the reason that he had erred in his prior testimony. As to whether the later assigned Assistant District Attorney had made an explicit statement to Dubin, reference need only be made to his own testimony, quoted in the dissent to support its contention that he had relied upon Dubin’s assertion of knowledge: "Once he told me that. Mr. Dubin told me that, outside Part 19, because he was concerned that Mr. Pilotti would not be covered in the unindicted case and he was concerned with that and he kept urging him to do it, strike the best plea bargain because that was the thing to do and Mr. Pilotti would not go along for whatever reason, and so Mr. Dubin told me this your honor. I didn’t have to tell him. He told me this, that he was aware of it and he knew that if we ever came up with this witness — I don’t know if he knew who the witness was or not — that we could ultimately indict him, which apparently did happen.” The dissent concession that Dubin did not know plainly shakes the credibility of this testimony by the later assigned Assistant District Attorney.

The dissent overlooks the Assistant District Attorney’s testimony at another part of the record:

"Q. Is it fair to say that you viewed the prosecution of Pilotti for the murder as yet unindicted would be advanced if he would plead guilty to the gun; is that a fair statement?

"A. Yes.

"Q. And you had discussions with [the originally assigned Assistant District Attorney] did you not, with respect to how it would advance the case and the cause of justice if you could bring Pilotti into a firm connection to that weapon, is that right, in a Court of Law?

"A. Absolutely.”

Further,

"Q. You knew, as an assistant DA, that there was a report acknowledging that the gun which allegedly was possessed by Pilotti was the actual murder weapon that was used to kill Malendez [sic]; you knew that, didn’t you?

"A. That there was such a report?

"Q. That there was such a report.

"A. I knew that? I don’t know.

"Q. Can you answer that?

"A. I don’t know. I don’t know if there was a report. I cannot say that I knew that because there was a report, but I do know that was told to me.

"Q. By?

"A. Either told to me by * * * [the Assistant District Attorney originally assigned to the matter or the bureau chief] or both.

"Q. Did you tell that to Dubin that there was?

"A. Dubin told me that.

"Q. Dubin told you?

"A. Yes.

"Q. That he had a client who has [sic] yet was unindicted for murder?

"A. Yes.

"Q. But he was willing to plead him guilty to the very weapon that he knew tied him into this as yet unindicted murder; is that what he told you?

"A. No. He did not want him to plead to the gun case.”

Throughout the testimony of the later assigned Assistant District Attorney before the hearing court, he made clear, again and again, that there were conversations with Dubin in which he discussed with or learned from Dubin that Dubin was aware of the ballistics connection between defendant’s gun and the Melendez homicide, and that Dubin had made this known to his client. Thus, in testifying as to the discussions with Justice Kapelman concerning an immediate hearing on defendant’s motion to suppress, he testified "Both Mr. Dubin and I tried to impress upon Judge Kapelman that this was significant case, even though just a gun case, because homicide rested upon this * * * Because the gun was connected to the homicide.” He further stated: "I am relating to you what Mr. Dubin said to me. I am not privy to the conversation between Mr. Dubin and Pilotti. I am telling you what Mr. Dubin related to me and Mr. Dubin was aware the gun was linked to the homicide, was the homicide weapon, and that he told me that he told his client this. And that he was running a risk because if we ever get the rest of the circumstantial case together, placing I guess the defendant Pilotti closest to the crime scene, that that would have been enough to establish a circumstantial evidence case which * * * [the bureau chief] didn’t feel we had at that tiem [sic] ” Similarly, the later assigned Assistant District Attorney responded to the following question:

"Q. He said that he knew, according to your testimony, that this very gun that was the subject of Mr. Justice Ramos’ hearing was the murder weapon; he knew that that was the murder weapon based on what he had been told, is that what you are telling us?

"A. Yes. That was the purpose we did the hearing.”

The dissent’s proper conclusion that Dubin and defendant were never apprised of the ballistics connection necessarily shakes the credibility of this testimony. Thus, all of the speculation in the dissent concerning who said what provides no support for the conclusion that defendant and his lawyer knew of the ballistics tie-in and that the later assigned Assistant District Attorney only inadvertently testified to conversations that could never have taken place.

We are faced, on this motion, with a situation in which defendant rejected an opportunity to plead to the gun charge to cover the unindicted Melendez homicide, subject to a sentence of 2Vz to 5 years consecutive to the Figueroa sentence, because he did not know of the ballistics tie-in, not made known to him until two years later. It was on this basis that he took the plea subject to a concurrent sentence. Such a result, plainly not of defendant’s making, cannot be permitted to stand.

Nor is it a response to suggest that the real issue is defendant’s guilt or innocence. The real issue is the sentence imposed upon him in the Melendez case as a consequence of his plea. It is true, as the dissent contends, that defendant’s admission in the gun case was never used against him in the Melendez prosecution. However, as the record makes clear, it was not used because defendant did not take the stand to deny or explain his possession of the gun.

After the motion to preclude the use of his plea in the Melendez case was denied, and the Assistant District Attorney promised not to use his admission unless he did take the stand and deny possession, there was no opportunity for defendant to avoid the consequences of his plea. Thus, the real question before us is not, as the dissent suggests, whether he waived his right to move to vacate the plea because that issue was available to him on his appeal in the Melendez case. The contention that he should have moved to vacate his plea on the appeal from the Melendez conviction simply does not make sense. Such a motion was certainly not available on that appeal.

The suggestion that the attempt to vacate the plea is "transparently a circuitous effort to provide a basis for a new challenge to the Melendez conviction on an issue that was already determined” is not an appropriate concern. If such a challenge is made, the court can then consider the problem in that context. The ground or issue raised upon the motion was not previously determined on the merits upon a prior motion or proceeding in a court of this State (GPL 440.10 [1] [b]; 440.10 [3] [b]).

The speculation in the dissent as to what defendant would have done on the trial of the Melendez case, had he not been misled, is without basis. Completely unrealistic is the notion that defendant and his lawyer would have rejected the alternate plea had they known, as was their right, that there was a ballistics tie-in. The controlling reality is that defendant was misled on an issue which was crucial to the taking of the plea, and misled by the actions of the Assistant District Attorney who, even now, insists to the contrary.

Accordingly, the order of the Supreme Court, Bronx County (Lawrence J. Tonetti, J.), entered October 21, 1985, denying defendant’s motion to vacate the judgment of conviction and the 2 Vi- to 5-year sentence as a second felony offender rendered against him on April 3, 1978 upon his plea of guilty to criminal possession of a weapon in the third degree, should be reversed, on the law, and the motion to withdraw the plea and vacate the sentence should be granted.

Sandler, J. P.

(dissenting). On February 28, 1978, the defendant, Dominic Pilotti, entered a plea of guilty to criminal possession of a weapon in the third degree pursuant to a plea bargaining agreement under which he was thereafter sentenced to a term of 2V% to 5 years, that sentence to run concurrently with a sentence of 11 to 22 years imposed on the defendant the year before when he pleaded guilty to manslaughter in the first degree under an indictment charging him with the murder of Wilfredo Figueroa. In the course of a detailed allocution, the defendant acknowledged that the only promise made to him was that the sentence to be imposed was to run concurrently with the sentence fixed under the Figueroa manslaughter plea.

In response to the court’s request to describe the facts in his own words, the defendant admitted that "On April 9, 1977 I possessed a .357 Magnum pistol”, that the pistol was loaded, and that he possessed it in a taxicab.

Alleging that this plea was induced by fraudulent misrepresentations and omissions by the prosecutors, the defendant moved pursuant to CPL 440.10 (1) (b) to vacate the judgment in July, 1984 — more than six years after the plea was entered, after the defendant had completed service of his concurrent sentence, and more than four years after the defendant, and his counsel, became aware of the central fact relied on in this motion, and included that fact in a motion to preclude the use of the defendant’s plea in the Melendez murder trial, a motion that was denied by the court in an order that could have been appealed by the defendant following his conviction in the case, but was not in fact an issue raised on that unsuccessful appeal.

In his motion papers, defendant’s counsel alleged: "The ground for this motion is that Mr. Pilotti’s guilty plea was induced by fraudulent misrepresentations and omissions by the prosecutors which induced him to plead guilty. The misconduct in question took the form of withholding a critical document from the defense, which, had it been disclosed, would categorically have precluded Mr. Pilotti from pleading guilty and allocuting to the offense.”

As amplified in the affidavit of defendant’s counsel, the gun which Pilotti admitted possessing had been ballistically connected with the killing of Jose Melendez. The affidavit alleged that the District Attorney’s office intentionally withheld from the defendant the police report establishing this connection in order to induce Pilotti to plead guilty to possession of the gun so that the plea could be used against him in the Melendez murder trial. The Melendez case was tried during October and November of 1980, following the indictment of defendant and a codefendant, Louis Giongetti, that was filed on December 21, 1979.

The motion papers included an affidavit by Lawrence A. Dubin, the attorney who represented Pilotti at the time of the plea to possession of a gun. Mr. Dubin deposed that he had never received from the District Attorney, in response to his request for all DD-5’s and Brady material, a report establishing a ballistics connection between the gun and the Melendez homicide; that he was under the impression from material supplied to him by the District Attorney that the weapon was not connected with the commission of any other crime; that it would have been his practice in connection with a gun case where the police action was precipitated by a shooting to have asked the District Attorney if the weapon was connected to any crime other than the subject of the indictment; and that he was not told that it was so connected. Accordingly, he advised Pilotti to enter a plea of guilty "since no other issue existed” and Pilotti’s right to appeal from a denial to suppress the gun was preserved.

After a hearing, the court denied the motion to vacate the plea of guilty to possession of the gun, concluding as a "matter of law” that there was no fraud, and rejecting the defendant’s contention that he and his lawyer did not know that his gun had been ballistically matched with the Melendez homicide.

Although the record strongly supports the hearing court’s determination that Pilotti’s plea was not induced by fraudulent misrepresentations and omissions, the hearing court clearly erred in the finding that the defendant, and his then counsel, knew at the time of the plea that the gun had been ballistically connected with the Melendez homicide. The origin of this error is clear, it having resulted from the hearing court’s misinterpretation, an understandable one, of an excerpt of a transcript dated June 7, 1977, in which, in connection with Pilotti’s unsuccessful motion to withdraw his manslaughter plea in the Figueroa case, he asserted that prior to the plea the Assistant District Attorney originally assigned stated that he had been caught with a gun in his belt which had been ballistically connected with the Melendez homicide.

A study of the testimony of the homicide detective in the Melendez trial, not called to the attention of the hearing court, makes it clear that the District Attorney’s office did not learn of the gun’s ballistic connection to the Melendez homicide until almost two months after the statement attributed to the Assistant District Attorney.

Although not central to the issues that divide the court, let me note my emphatic disagreement with the conclusion in the court’s opinion that "it is plain” from the record that the Assistant District Attorney originally assigned falsely informed defense counsel, and presumably the Figueroa Trial Judge, who was clearly a party to the conversation, that the Pilotti gun was ballistically connected to the Melendez homicide before that connection was established. The record indicates at least six alternative explanations for Pilotti’s statements consistent with the Assistant District Attorney having truthfully informed counsel and the court of the facts surrounding Pilotti’s arrest that are individually and collectively far more probable than the inference accepted in the court’s opinion.

Pilotti (1) may have misunderstood that which was told him by his defense counsel, the words "connected” and "ballistically connected” having an obvious potential for confusion in this context, (2) may have inadvertently rephrased what his lawyer told him in a way that altered its meaning, and (3) may have deliberately misstated what he had been told, which would have been only one of a number of obviously exaggerated and deceptive statements that the defendant made in the course of his frantic efforts to vacate a plea of guilty to manslaughter which he had entered in the middle of the Figueroa trial only after two eyewitnesses had identified him as the killer. Alternatively, defense counsel (4) may have misunderstood what the District Attorney said to him and the Trial Judge, (5) may have inadvertently rephrased it in a way that altered its meaning, and (6) may have deliberately overstated what he had been told in an effort to persuade the defendant to accept a plea suggested by the trial court that would cover both homicides, and that would have saved the defendant from the significant prospect of a conviction for murder and a 25-year-to-life sentence.

If Mr. Dubin had been told by the defendant, his partner who was present at the hearing, or by his predecessor attorney that the Assistant District Attorney had made the statement asserted by the defendant, and if he believed that such a statement had been made, it is extremely hard to understand why he never testified to having discussed that significant statement with the defendant, and even harder to understand why he did not undertake to ascertain from the Assistant District Attorney originally assigned the truth of a statement contrary to his understanding of the situation on a matter alleged to have been of prime importance. In addition, it is manifestly unfair to the Assistant District Attorney originally assigned and his bureau chief to fault them for failing to respond to the defendant’s statement when the record clearly discloses that the court shut off any further discussion of the Melendez matter by saying that it was not before him, "and I don’t care what happened in that case”, and immediately proceeded to present a detailed chronology of the events leading up to the plea of guilty that concluded with his sentencing the defendant to the previously agreed sentence.

Because of the hearing court’s erroneous conclusion that Pilotti and his counsel were aware that the gun found in his possession had been ballistically connected to the Melendez homicide, it becomes necessary for this court to undertake a de novo examination of the record, and to make new findings.

The issues with which we are concerned on this appeal arise out of events that occurred in the early morning of April 9, 1977. On that morning, Pilotti, on bail and awaiting trial scheduled to commence in two days on an indictment charging him with the murder of Wilfredo Figueroa, was arrested for criminal possession of a gun and for homicide in connection with the fatal shooting of Jose Melendez. Because the strength of the evidence with regard to Pilotti’s possession of a gun on that morning is relevant to the motive to deceive attributed to the District Attorney’s office, it is appropriate to set forth in some detail the circumstances surrounding Pilotti’s arrest.

At about 9:30 in the morning, several witnesses heard shots fired from a green Pontiac station wagon bearing New York license plates 232 XDP, shots which caused the death of Jose Melendez, the occupant of another car. A license plate check quickly established that the Pontiac was registered to a woman living at 2517 Radcliffe Avenue. Police officers responded quickly to that address, reaching it within a few minutes. They there saw the green Pontiac station wagon bearing the license plate number reported by the witnesses. The building at that address was a three-story apartment house dwelling. The house was kept under observation for a period of 45 minutes.

The officers then saw a man stick his head out of the door to 2517 Radcliffe Avenue, looking in both directions before exiting. The man was quickly joined by two others, one of them the defendant. The defendant, dressed in formal clothing and wearing a white fur coat, walked past the Pontiac station wagon and into a cab, apparently one that had responded to a telephone call. His two companions walked in another direction. One officer approached the two men, later identified as Louis Giongetti, ultimately a codefendant in the Melendez murder case, and Alfred Peruso. A frisk of Giongetti disclosed a loaded .32 caliber revolver and a blackjack.

The second officer walked to the cab, went to the rear passenger door, which he opened, observed the defendant with his white fur coat on the seat next to him, and asked him to leave the vehicle. The defendant asked if he could get his coat, and was told not to touch anything and to step out, which he did. The officer escorted him to the front of the cab where they were met by members of a back-up unit. The officer then returned to the cab for the purpose of picking up defendant’s coat, and as he did so, felt a hard object under the coat, and found under it a loaded .357 Magnum revolver wrapped in a dishcloth, a gun with two empty chambers, and which ballistics evidence later determined had been recently discharged and was the weapon that had killed Melendez. All three men were arrested and charged with Melendez’ death, although Peruso’s arrest was "rescinded”, presumably after he informed the police that the defendant and Giongetti had been with him in the Pontiac station wagon, and that he had observed them with guns at a time that shots were fired.

At the Melendez trial the cab driver testified that, in accordance with his invariable practice, he had looked at the back seat after discharging his most recent passenger before the defendant and had observed no gun.

On April 11, 1977, defendant’s trial for the murder of Figueroa commenced with pretrial hearings. On April 15, after two witnesses had identified the defendant as Figueroa’s killer, he pleaded guilty to manslaughter in the first degree under a plea bargaining agreement which provided for a sentence of 11 to 22 years in prison.

On May 8, 1977, the defendant was indicted for the crime of criminal possession of a gun in connection with the events of April 9, 1977. From the evidence adduced in the subsequent Melendez murder trial, it is clear that, when the case was presented to the Grand Jury, the District Attorney did not know that the gun, for the possession of which Pilotti had been indicted, was ballistically connected with the Melendez homicide. It is also clear that Peruso had departed in his Grand Jury testimony from his postarrest statement, was indicted for perjury and absconded at a time not fixed in the record, and that he was missing at the time Pilotti entered his plea of guilty.

As already indicated, Pilotti entered his plea of guilty to the gun charge on February 28, 1978, some nine months after his indictment on that charge. Pilotti and Giongetti were indicted for the murder of Melendez on December 21, 1979, almost two years after Pilotti had entered his guilty plea. The record is clear that the Melendez murder case was presented to the Grand Jury only after the apprehension of Peruso and Giongetti, who had also absconded. Contrary to an impression suggested by parts of the record, the case was presented and the indictment voted before this court, on December 20, 1979, affirmed the denial of Pilotti’s motion to suppress the gun, and some months before the Court of Appeals denied his application for leave to appeal from that affirmance. (See, People v Dominick Pilotto, 73 AD2d 846, lv denied 49 NY2d 895, cert denied sub nom. Pilotti v New York, 449 US 870.)

Before detailing the relevant parts of the hearing evidence, some of which has a Rashomon-like quality, it may be helpful to set forth preliminarily the factual conclusions supported by the record, and also to discuss in a unified way, at the risk of some later repetition, two critical aspects of the record — the defense theory of deliberate misrepresentations by the District Attorney’s office, and contradictory testimony on a critical issue by the two principal witnesses, Mr. Dubin, the defense lawyer, and the Assistant District Attorney later assigned.

From a study of the hearing record, it is clear that the defendant, and his counsel, did not in fact know at the time the plea was entered, that the gun had been ballistically matched to the Melendez homicide. It is also clear that this misunderstanding was contributed to significantly by defense counsel’s receipt during the discovery process of two DD-5s (police reports), dated April 14 and 15, 1977, which reported no ballistics connection between Pilotti’s gun and shells found in a codefendant’s pocket, and no connection between that gun and ballistics evidence found at the scene of the homicide, and the failure of the District Attorney to turn over to defense counsel a DD-5 dated June 2, 1977, reporting that Pilotti’s gun was ballistically matched to a bullet found in the body of the deceased.

The record does not, however, support in any respect the defense contention that the failure to turn over the June 2 report was purposeful or part of a deliberate effort by the then Assistant District Attorney to deceive defense counsel. On the contrary, every relevant circumstance in the record, realistically considered, points inexorably to the conclusion that the failure to turn over the June report was not purposeful, but resulted from an inadvertent omission either by the Assistant District Attorney first assigned to the case, or by someone to whom the responsibility for assembling and turning over discovery material had been delegated.

The most likely explanation for the omission lies in the circumstance that the assigned homicide detective in the Melendez case first learned of the ballistics connection and prepared his report on June 2, 1977, some six weeks after the earlier reports, and almost a month after the indictment. Although not a matter of record, it is sufficiently a matter of public record to take judicial notice of the fact that for many years and during the time with which we are concerned, it was the policy of the Bronx District Attorney’s office to make a voluntary disclosure of those matters that the court would direct to be disclosed, and that such disclosure usually occurred on the day that the defendant was arraigned on an indictment, or shortly thereafter.

If the defense in fact received the April 14 and April 15 DD-5s, as the defendant alleges and I believe, that transfer most probably took place weeks before the District Attorney’s office learned of the ballistics connection. It would hardly be a remarkable departure from what we know of the human capacity for error for the Assistant District Attorney originally assigned, on learning of the belatedly established ballistics connection, to have focused on its implications for the prosecution of the Melendez homicide, and not to have appreciated that the information would be embodied by the homicide detective in a report clearly related to those previously turned over, and that he should forward that report to the defense counsel. What would be a remarkable departure from normal behavior would be for the Assistant District Attorney to seize on this belatedly received information as an opportunity to deceive the defense into agreeing to a plea that was in fact entered some nine months later, to secure the acquiescence of his bureau chief in that deception or to have concealed it from his bureau chief, and to have thereafter recruited the Assistant District Attorney assigned to the case on the eve of the suppression hearing into becoming a participant in the deception.

That what occurred here was inadvertent human error of a kind that occurs all too often in every area of human experience and did not involve purposeful deception is supported by a host of circumstances to be discussed hereafter, and is convincingly confirmed by direct, highly probative testimony, the probative value of which is enhanced by the likelihood that the witness did not appreciate its significance.

The Assistant District Attorney assigned to the case by his bureau chief only a few days before the plea was entered because the Administrative Judge had insisted that the case proceed promptly and the Assistant District Attorney originally assigned was then unavailable, testified that he was told by the Assistant District Attorney originally assigned that all of the police reports had been turned over to defense counsel. Accepting this testimony as reliable, and there are compelling reasons to do so, it directly establishes that the originally assigned Assistant District Attorney not only did not intentionally withhold the June report, but that he had been acting for some time in the belief that defense counsel had received all of the relevant police reports. It is surely not a plausible hypothesis that he deliberately withheld the June police report to deceive defense counsel, and then undertook to deceive the assistant thereafter assigned to the case.

Turning directly to the defendant’s main thesis of purposeful deception, the fact must be squarely faced that defendant is accusing at least two Bronx Assistant District Attorneys, and almost certainly a third, the chief of the Homicide Bureau, of professional misconduct of a grave character. It would not be a minor professional lapse for Assistant District Attorneys to undertake a concerted effort persisting over many months to deceive a defendant into pleading guilty to possession of a gun in order to use that judicial admission in the prosecution of a homicide indictment filed thereafter.

There are two quite remarkable aspects to defendant’s claim. The first is the highly risky character of the misconduct attributed to at least two, and more likely three Assistant District Attorneys, in relationship to the benefits that they could have anticipated. The second is that the motivation attributed to the Assistant District Attorneys for this misconduct is irreconcilable with the alternative plea bargain in fact offered to the defendant, one alternative providing for a plea to cover the Melendez homicide with a 21A- to 5-year consecutive sentence, it manifestly being in the interest of the District Attorney with respect to the alternative plea clearly preferred by them that the defendant know that the gun found in his possession was ballistically matched to the homicide.

A striking aspect of the misconduct alleged is that those charged with participation could not reasonably have expected to reap its fruits without the nature of their deception becoming known, and becoming a subject of challenge in court. Inherent in the misconduct charged is the certainty that the defendant and his then counsel (quite possibly the lawyer who represented him on the gun case), would learn of the deception leading to the gun plea before it could be used as presumably intended in the prosecution of the Melendez murder, and at a time when the defendant and his counsel would have the strongest motivation to expose the deception that had been practiced on them, in an effort to preclude the use in any way of the gun plea in the Melendez murder trial. Nor could the Assistant District Attorneys have any assurance that defense counsel, accurately described by the Hearing Judge as an experienced and respected lawyer, would not have made contemporaneous memoranda detailing the representations that had been made to him. Indeed, the Assistant District Attorneys could have had no assurance at any time during the months that intervened between the discovery process and the entering of the plea, that their plans would not be effectively forestalled, and their misconduct discovered even before the plea was entered, by defense counsel noting on the record at the time of the plea, his understanding, and the basis for his understanding, that the gun was not connected with the Melendez homicide.

And to what end did the Assistant District Attorneys undertake this highly risky course of professional misconduct? The motivation attributed to them was the desire to use the defendant’s gun plea during the Melendez murder trial to confirm the fact that Pilotti was in possession of the murder weapon. But as the facts surrounding Pilotti’s arrest make clear, the evidence of his possession of the gun was overwhelming, and could not possibly have given rise to any flicker of anxiety as to that element of the homicide case on the part of the most fearful and pessimistic trial assistant. So strong was the evidence of Pilotti’s possession of the gun, that Mr. Dubin, testifying at the hearing as to the strategy that he would have pursued if the gun case had gone to trial, stated that he would have interposed the defense of "transitory possession”, surely a defense of desperation under the circumstances, but one that confirms the reality that no competent lawyer concerned with the matter could have doubted that a jury would have been convinced from the evidence that Pilotti had in fact possessed the gun.

The implausibility of the defendant’s thesis is further underlined by the fact, incontrovertibly established, that the District Attorney’s office’s decision not to indict Pilotti for the Melendez murder at that time was wholly unrelated to any fears concerning the adequacy of the proof of his possession of the murder weapon. What the contemporaneous memorandum of the later assigned Assistant District Attorney to his bureau chief establishes is that the Homicide Bureau chief, at the time of the plea to possession, was of the opinion that additional evidence connecting Pilotti to the Melendez murder, wholly apart from evidence establishing Pilotti’s possession of the murder gun, was required before he could successfully be prosecuted, and that there was no assurance that such evidence would be forthcoming. The primary hope at the time for securing such additional evidence related to locating Alfred Peruso and inducing him to testify in accordance with his statement to the police. It was for this reason that Pilotti and his codefendant were not indicted in the Melendez homicide until December 21, 1979, after the apprehension of Peruso and the codefendant.

It is of no moment to the issue presented that Peruso ultimately proved to be an uncooperative witness. What is quite clear is that at the time Pilotti’s gun plea was entered, the District Attorney’s office did not intend to proceed with his prosecution for the Melendez murder unless additional evidence was obtained — evidence which they had no assurance of securing.

In short, the defense thesis of fraudulent misrepresentation requires it to be accepted as probable that two or more Assistant District Attorneys undertook a highly risky course of professional misconduct that was certain to be exposed prior to reaping its intended fruits, and likely to become the subject of a motion, in order to secure additional evidence on an issue as to which the evidence in the District Attorney’s possession was conclusive, for use in a homicide prosecution that the bureau chief did not then intend to pursue unless evidence connecting Pilotti with the homicide, other than his possession of the murder gun, was obtained.

What makes the defense thesis even more implausible is the reality that from the standpoint of the alternative plea bargain proposed by the District Attorney’s office to defendant, it was important to the District Attorney that the defendant and his counsel know that Pilotti’s gun was ballistically connected to the Melendez homicide. The proposed plea bargain was in the alternative — 2 Vi to 5 years to run consecutively to the Figueroa sentence if the plea covered the Melendez homicide, and 2 Vi to 5 years to run concurrently with that sentence if it did not.

From an examination of the contemporaneous memorandum of the later assigned Assistant District Attorney to his bureau chief, and on any realistic view of the record, it is clear that the Homicide Bureau chief preferred that the defendant accept the proposed plea covering the Melendez homicide case, in the absence of the additional evidence which he then had no assurance would be acquired. From the standpoint of this preferred alternative, it was important that defense counsel know that the Pilotti gun had been ballistically connected with the homicide, and that there was a real possibility that he might ultimately be successfully prosecuted for that homicide. It makes no sense at all to believe that the Assistant District Attorneys engaged in purposeful misconduct to withhold from defense counsel information that they would have wanted him to have in order to accomplish the plea bargain that was clearly preferred by their bureau chief.

Turning to the testimony of the principal witnesses, Mr. Dubin, defense counsel, and the Assistant District Attorney later assigned, we are confronted with a direct, and perplexing contradiction between them on an issue of central importance. The Assistant District Attorney testified that at one point during plea discussions Mr. Dubin made it clear that he knew that Pilotti’s gun had been ballistically connected to the Melendez homicide. In turn, Mr. Dubin testified that the Assistant District Attorney