People v. Matias

68 Misc.3d 352

123 N.Y.S.3d 792

The PEOPLE of the State of New York

v.Jose MATIAS, Defendant

Ind. No. 1832/92

Supreme Court, Bronx County, New York.

Decided April 23, 2020

Attorney for the prosecution: ADA Joshua Weiss, Bronx County District Attorney's Office, 718-838-6229

Attorney for defendant: Natalie Rae, Legal Aid Criminal Appeals, 212-577-3403

Steven L. Barrett, J.

On May 9, 1994, following a jury trial, defendant was found guilty of two counts of murder in the second degree and criminal possession of a weapon in the second degree for having fatally shot 17-year-old Osvaldo Lucero and Osvaldo's 21-year-old brother Jacinto Lucero at a sixteenth birthday party for Osvaldo's girlfriend, Melissa DelMoral.¹ On June 2, 1994, defendant was sentenced by this Court to consecutive indeterminate terms of imprisonment of from 25 years to life for the two murder convictions and a concurrent term of from five to fifteen years for the weapons conviction.

Defendant appealed his conviction arguing that the Court erred because it declined defendant's request to deliver a justification charge and an intoxication charge, and because his 50 years to life sentence was unduly harsh and excessive due to his age (16-years-old) at the time of his commission of the crime and his lack of criminal history. On January 21, 1997, the Appellate Division, First Department affirmed the judgment of conviction and, in so doing, found that defendant was not entitled to either charge and that there was no abuse of sentencing discretion and therefore no basis to reduce defendant's sentence. See People v. Matias , 235 A.D.2d 298, 653 N.Y.S.2d 308 (1st Dept. 1997), lv. denied, 89 N.Y.2d 1038, 659 N.Y.S.2d 869, 681 N.E.2d 1316 (1997). On March 8, 2000, the Hon. John Martin dismissed defendant's writ of habeas corpus, and, on March 27, 2001, the United States Court of Appeals, Second Circuit, declined to issue a certificate authorizing an appeal.

On October 6, 2006, defendant filed a motion to vacate his conviction pursuant to CPL 440.10 based upon claims of newly discovered evidence and ineffective assistance of counsel.² On June 26, 2007, this Court denied defendant's motion. In rejecting defendant's newly discovered evidence claim, the Court found that the proffered evidence wasn't newly discovered or exculpatory. Moreover, the Court found that the trial evidence overwhelmingly demonstrated that defendant was guilty of the crimes for which he was convicted. The Court noted that: 1) at least three credible witnesses testified to seeing defendant fire the fatal shots; 2) defendant confessed to the shooting both orally and in writing; and 3) the gun defendant admitted firing (and which others at the party where the murders took place had seen him possess) was consistent with the type of weapon the ballistics expert had identified as being the one used to facilitate the double murder. In addition, the Court rejected defendant's claim of deficient representation due to counsel's failure to press a claim that the evidence at trial was insufficient to support a conviction for intentional homicide. In reaching this conclusion, the Court found that the evidence adduced from the People's witnesses at trial as to defendant's actions both before the shooting (cleaning and reloading his .25 caliber weapon) and during the shooting itself (repeatedly firing his gun at close range, even after Jacinto Lucero was shot in the chest and was futilely attempting to crawl to safety in the confines of a small kitchen) manifested defendant's clear intent to kill.

Now, almost twenty-five years after his conviction, defendant has filed a motion pursuant to CPL 440.20, this time to vacate his sentence, claiming that: 1) based upon fairly recent decisions of the United States Supreme Court interpreting the Eighth Amendment as applied to juvenile offenders,³ the imposed sentence violates that Amendment's prohibition on cruel and unusual punishments due to the fact that defendant was 16-years-old at the time he shot and killed the Lucero brothers and that prior to imposing sentence the Court did not properly consider defendant's youth; and 2) his trial counsel, Peter Gersten, Esq. failed to provide meaningful representation at defendant's sentencing as he failed to provide the Court with mitigating evidence relating to defendant's youth and difficult childhood. For the reasons stated below, defendant's motion is summarily denied.

A brief recitation of what transpired at defendant's sentencing will place the issues now raised by defendant in context.

Sentencing Proceedings

As required by statute, prior to sentencing the Court ordered a pre-sentence report to be prepared by the Probation Department. See CPL 390.20. That report, dated June 1, 1994, first noted defendant's pedigree information, including his date of birth, and indicated that defendant had no juvenile or adult criminal record and that there were no charges pending against defendant. The report then gave a brief description of the facts of the shooting and noted that defendant declined to be interviewed by the Probation Department. The report further indicated that due to defendant's refusal to be interviewed by the probation officer who prepared the report, and because no other source was available to be interviewed, the probation officer was unable to provide the court with information regarding defendant's family and social circumstances. The probation officer was able to interview the mother and sister of the deceased victims, each of whom informed the officer that the loss of their two loved ones had traumatized their family to such an extent that they had continued to attend weekly therapy and grief counseling sessions two years after the murders. The mother and sister both reported how much their sons and brothers were missed not only by themselves, but also by their relatives and friends due to "their kind hearts and productiveness." They further reported that Jacinto had dreamed of going to college and Osvaldo had enlisted in the Marines where he had planned to serve his country after he had graduated from high school. The mother and sister both requested that the maximum sentence be imposed. In concluding the report, the probation officer characterized defendant's actions as "an extreme deliberate and callous episode of violence," which " reveals [defendant's] capacity to pose a threat to society," and warrants "a pessimistic outlook for a future conforming [to] community adjustment."⁴ (See Defendant's motion to vacate, Exhibit I.)

Defendant was sentenced on June 2, 1994. Prior to imposing sentence, each counsel and defendant were given an opportunity to make a statement. See CPL 380.50. First, the trial prosecutor, ADA Daniel McCarthy, made a short, impassioned plea for the maximum sentence for each murder and for the sentences to be imposed consecutively. He noted that the victims' family were "kind, caring and wonderful, hard-working people." He noted that the victims were leading full, productive lives, and that at the time they were gunned down, Osvaldo was seventeen, a senior in high school who was awaiting entry into the Marines and that Jacinto was twenty-two, attending college part-time and working full-time in the garment industry. ADA McCarthy also noted that defendant's acts were acts of casual and extreme violence and that defendant had never expressed remorse for his actions. ADA McCarthy asked for a sentence that would exact "some measure of retribution" and "protect the rest of us from Jose Matias," and noted in a final rhetorical flourish, (which appears to be somewhat prescient given the issue now raised by defendant) "there will come a time based on Jose Matias' age, when he will have the opportunity to walk out the doors a free man and when that time comes, Jay and Osvaldo will be but fading memories to the people who loved and cared for them." (See Defendant's motion to vacate, Exhibit J at pp. 4-6.)

Mr. Gersten next spoke briefly on behalf of defendant. Gersten highlighted defendant's age, his lack of criminal history, and the impulsive and aberrational nature of defendant's actions.⁵ Gersten concluded by asking for leniency, emphasizing that the shooting is not only a tragedy for the victim's family, but also is a tragedy for defendant's family, and suggested that no purpose would be served by destroying defendant's life by sentencing him to the maximum as requested by the prosecutor. (See Defendant's motion to vacate, Exhibit J at pp. 6-7.)

The Court then asked defendant if he wished to say anything to the Court prior to being sentenced. Defendant declined to make a statement.

The Court then spoke before imposing sentence.⁶ The Court first noted that notwithstanding the enormous number of homicides in Bronx County at that time, it still couldn't help but be deeply affected by the tragedy presented by the facts of this case. The Court then gave a fuller explanation of the reasons for the sentence it was about to impose in which it emphasized the uniqueness of the crime of murder and the severity of the loss to the family of the two victims:

"Murder, of course, is a special kind of crime. Even though it fits in the same book as all the other crimes that we try in this Court, there is an obvious permanence to the consequences and enormous enhancement of the loss that occurs when somebody is murdered. And those are the kind of considerations that force a Court not to give as much consideration as it would otherwise give to the fact that an individual who has been convicted of such a crime has not previously been convicted of another crime. The effect on the victims and the family in this case is particularly poignant because of the characteristics of the two individuals who were murdered. This is a community where many poor people reside and where people of Hispanic origin have an enormous struggle to enter mainstream society. And here we had two young men, seventeen and twenty-one, as I

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