SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS - CRIMINAL TERM - PART 39
THE PEOPLE OF THE STATE OF NEW YORK,

-against-

CHARLES GAMPERO,

DEFENDANT.

PLEA
Indict. No. 15463/94

360 Adams Street
Brooklyn, New York
November 3, 1995

BEFORE:
HONORABLE FRANCIS X. EGITTO,
Justice
APPEARANCES:
OFFICE OF CHARLES HYNES, ESQ.
DISTRICT ATTORNEY - KINGS COUNTY
Attorney for the People
BY: JULIE BLOCK, ESQ.
-and-
PAUL GLIOTTA, ESQ.
Assistant District Attorneys

JOEL WINOGRAD, ESQ.
GARY FARRELL, ESQ.
Attorneys for the Defendant

THERESA FARINA-MEISER, CSR, CM
OFFICIAL COURT REPORTER

THE CLERK: Case on trial, People versus Gampero. Same appearances.

MR. WINOGRAD: Joel Winograd and Gary Farrell for the defense.

THE COURT: Mr. Winograd and Mr. Farrell, talking at the bench, I told you yesterday before we started jury selection that the DA would come down to manslaughter one on condition that I sentence the defendant to eight-and-a-third to 25 years.

While -- I'll put it on the record openly. While I do not believe, even though there's an intentional murder count, I do not believe that this defendant intended to kill somebody.

The problem with this case, as you saw the case I had yesterday, is that a jury -- and I had a case where there was maybe less depravity involved, because all there was was one act of tying a shoelace around somebody's neck -- the problem you have to face is the depravity count. Does the jury find that the act of this defendant was so depraved that it evinced an absolute disregard for human life?

Now, the DA said manslaughter. There's a good possibility that if the jury disregards the depravity that there's definitely some proof or enough proof that this defendant intended to cause serious physical injury, which would make it a manslaughter, with a maximum of eight-and-a-third to 25.

So I said to the DA that I thought that if she was discounting the depraved count that she wasn't giving up anything, because without the depraved count the most this would be would be a manslaughter. I think at that time she agreed with me.

MS. BLOCK: I understand.

THE COURT: So she says, "But we got the depravity." I said I know. I will make my offer, and then if you're hardnosed about it I'll go up the line and try to twist arms somewhere along the line because I think a person of this age should have the benefit of something.

MR. WINOGRAD: You said that.

THE COURT: On my own I said, if he's willing to take a seven year minimum. And you said even before we started, can we have overnight, because I don't like to talk about pleas once I start work. And Mr. Farrell is the best example of that. He's been before me only a couple of weeks ago.

Once I start picking I don't even talk disposition because I want to get a trial over with. If I was to talk about it every morning, it would double the time taken for a trial.

MR. WINOGRAD: You're right.

THE COURT: And you're out of your office that much longer and I can't take the next case. So you said, "Can I have overnight?"

MR. WINOGRAD: I did.

THE COURT: And I said fine. Now you say you want till Monday, but the problem is if you pick the jury today, the DA is going to have to spend all weekend preparing her case and have a full day of witnesses on Monday, because they know me well enough to know that once they stop calling witnesses with a half a day left, they rest. I don't wait for other witnesses. So that's the only reason I can't go over until Monday.

MR. WINOGRAD: The reason I told you is that they are expecting other family members coming up from Florida, and they are a pretty close knit family, your Honor. This is a very important decision in this young man's life. They operate as a family.

Mr. and Mrs. Gampero, there is a divorce here. Charles is a man of tender years, 20 years old and, very frankly, I told you that even though you give us until Monday, I would call the DA tomorrow and let them know what the decision is.

THE COURT: But they are going to have to use all of their resources in the office to get their witnesses together.

MR. WINOGRAD: They have all their witnesses together now.

THE COURT: I take six to eight witnesses a day in my trials, usually, depending on cross-examination, and I know you well enough to know that you're not going to just review the People's direct examinations, you're going to pick your spots and your cross-examination will be limited.

I know which lawyers are going to BS their way through cross-examination and which are going to look for points. But that's it once I start. And she tells me if we go over till Monday she is not even going to offer the manslaughter anymore.

Once she says no manslaughter plea, then my hands are tied and I can't even offer a plea. That's the position we're in, in between a rock and a hard place, let's put it like that.

MR. WINOGRAD: Judge, I must say to you very frankly and with respect that the way you've recounted it is the conversations that we have had, and I respect you for saying these things and for trying to do what you think is in the best interest of the public and your position as a Judge of this Court. And, very frankly, you're right, I am between a hard rock.

THE COURT: I try to do whatever I can for the defendant.

MR. WINOGRAD: I understand that.

THE COURT: That's what plea bargaining is all about.

MR. WINOGRAD: Yes, it is, and the truth of the matter is that very frankly, I don't see anybody being prejudiced by going over till tomorrow. I mean, we're not going to be in court, but I will call the district attorney at their office or any number they give me and give them an answer.

This isn't a decision of whether or not to go on vacation for two weeks and then come back, or to sell a business, we are talking about something substantial in somebody's life.

THE COURT: You're the lawyer, a very, very learned and astute lawyer.

MR. WINOGRAD: Thank you.

THE COURT: Mr. Farrell is a bit younger than you are, but I guarantee you that within the next few years he'll be your equal.

MR. WINOGRAD: Not even a question about that.

THE COURT: But, then you have the defendant whose life is the one that's being talked about, time in his life. But the thing you got to understand, if he accepts or if I can get him -- and I don't know yet if I can -- if I can get him the seven year minimum, he's out by the time he's 27, if not earlier, because they have this early release program. I don't know. But at the very least he will be out at 27. He's gambling with being found guilty of murder and being in jail until he's 45.

MR. WINOGRAD: These are things we discussed. Your Honor, may we have ten minutes to sit down with the parents in a conference room and discuss the thing that you have just laid out?

THE COURT: I'll continue at a quarter of 11:00. It's now 10:30.

MR. WINOGRAD: Thank you very much.

THE COURT: I hope the -- as a matter of fact, I said what I did because I have the family of the victim here also. I want them to know what I'm thinking because if a plea is taken the case is over, you don't have a trial, you don't have an appeal, and that's the end of it.

MR. WINOGRAD: You have closure.

THE COURT: Yes, it's over for everybody. They don't have to go through the agony. All right, come back at a quarter of 11:00.

(A recess was taken.)

* * *

THE CLERK: Case on trial continued.

MR. WINOGRAD: Your Honor, it is with a heavy heart that I at this time ask the Court for permission to withdraw the previously entered plea of not guilty to Indictment 15463 of 1994 and at this time that indictment charging the defendant, Charles Gampero, with two counts of murder, one count being committed intentionally and the other count alleged to be committed by depraved indifference, your Honor, it is my client's request that I ask you for permission to withdraw his previously entered plea to that indictment and at this time to allow him to plead guilty to the lesser included offense of manslaughter in the first degree in full satisfaction of the indictment now pending against him in this Court that I've just described.

THE COURT: Subject to a proper allocution, is that plea satisfactory to the People?

MS. BLOCK: Yes, your Honor.

THE COURT: Now, Mr. Gampero, did you hear what your lawyer said?

THE DEFENDANT: Yes.

THE COURT: You have to speak up so she can hear you.

THE DEFENDANT: Yes.

THE COURT: Do you understand that a plea of guilty is the same as if we continued with this trial and you were found guilty by a jury of manslaughter in the first degree?

THE DEFENDANT: Yes.

THE COURT: And by pleading guilty you are giving up your right to a trial by jury or a judge, if you didn't want the jury; you are giving up your right to call witnesses to put in a defense, so that you and your lawyer can cross-examine the witnesses that are brought in; you are giving up your right to a trial; you are giving up your right to see witnesses and have the People produce them so you and your lawyer can cross-examine them.

You are giving up your right to put in a defense, any defense you might have, either by testifying yourself or by calling witnesses. You don't have to. You have a right to remain silent and tell the People, you say I'm guilty, prove it, I'm not saying anything.

By pleading. guilty you are giving up all these rights. Do you understand that, sir?

THE DEFENDANT: Yes, sir.

THE COURT: In addition, you are giving up your right to appeal the plea and the sentence. That means you can't go to a higher court, the Appellate Division and say that your lawyer didn't explain what was going on, you didn't understand the Judge, or the sentence was too harsh, anything of that nature. It ends right now here.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Anybody forcing you to give up these rights?

THE DEFENDANT: No.

THE COURT: You are charged, sir, that on December 11, 1994 at about 2:15 a.m., the address is 6161 strickland Avenue in the county of Kings, would that be in front of the Gil Hodges' Lanes?

THE DEFENDANT: Yes.

THE COURT: Tell me what happened, what was it. You apparently were in those bowling lanes, right?

THE DEFENDANT: Yes.

THE COURT: Go ahead.

THE DEFENDANT: When I was leaving the bowling alley --

THE COURT: Were you drinking in this --

THE DEFENDANT: No.

THE COURT: Go ahead.

THE DEFENDANT: When I was leaving the bowling alley a man I never seen before, who appeared to be drunk, came at me, he hit me. I hit him, he fell against the car, and fell against the curb.

THE COURT: That's not a crime. I want to know what happened. The record here shows that you beat up on this man, and once he was on the ground you stomped him, you kicked him and punched him.

THE DEFENDANT: I only kicked him once, and I punched him once when he was on the ground.

MR. WINOGRAD: Your Honor, what happened, he hit him, the defendant backed up, hit his head on the car, then hit his head on the curb. Mr. Gampero said he then, while he was down, kicked him and then he punched him.

THE COURT: You didn't punch him while he was standing up?

THE DEFENDANT: No.

THE COURT: Mr. Winograd, I went out of my way to try -- I want a candid statement of what transpired. This man did not die from one punch. I saw the pictures. This injury to the face was not one kick and it was not one punch.

Now, if he can't be candid with me --

MR. WINOGRAD: Can I approach with the district attorney?

THE COURT: I want him to tell me. He knows what happened. I wasn't there, you weren't there, and the People weren't there. I don't know what his condition was that night.

MR. WINOGRAD: He wasn't drinking.

THE COURT: I am not saying he was. But the pictures that we saw are not as a result of one kick, and they're not a result of one punch. And if that's his position, we'll let the jury decide it because that's not, in my opinion -- he has to have the intent to cause serious physical injury to be manslaughter, and to kick a person once and punch a person once is not intention to cause serious physical injury.

I know it's a tragedy, and I know when you say you were heartbroken, everybody is heartbroken in this case. There are two families that are being destroyed and I'm here to find out what happened. My heart goes out to the victim's family. My heart goes out to his family. That's the only reason I went to bat with the DA's office. I don't like to do these things. I like a jury to decide what happened.

But for him to ask me to be lenient, I want to know what happened, and it's not just one kick, believe me: I have been around here a long time.

(The defendant conferred with his attorneys.)

THE COURT: You know what the sentence is going to be, regardless of what you tell me. I just want the truth. I know it's difficult to say it in front of your parents, if not impossible.

THE DEFENDANT: After he hit me I kicked him in the back and he fell against the car, he fell against the curb, and I went over and I kicked him a few times and that's what happened.

THE COURT: Kicked him and stomped him?

THE DEFENDANT: I kicked him, yes.

THE COURT: And you stomped him?

THE DEFENDANT: Yes.

THE COURT: Right?

THE DEFENDANT: Yes.

THE COURT: And by doing that you intended to cause serious physical injury to this person?

THE DEFENDANT: Yes.

THE COURT: Isn't that right?

THE DEFENDANT: Yes.

THE COURT: You weren't satisfied with just knocking him down and walking away, were you?

THE DEFENDANT: No.

THE COURT: You wanted to make sure he didn't get up again, right?

THE DEFENDANT: Yes.

THE COURT: Is that plea satisfactory?

MS. BLOCK: Yes, your Honor.

THE COURT: Now, did anybody threaten you to make you plead guilty?

THE DEFENDANT: No.

THE COURT: Anybody promise you anything except that the sentence will be seven to 21 years?

THE DEFENDANT: No.

THE COURT: Is that clear? And if I'm notified by the Parole Board at any time I make no comment. I don't say I believe you should be kept in longer or anything. I make no comment. Is that clear?

THE DEFENDANT: Yes.

THE COURT: Whatever you do when you're incarcerated is strictly up to you. I also tell your lawyer --

MR. WINOGRAD: He won't have any problems, Judge. He's a decent young man.

THE COURT: I am not going to get -- when the Parole Board makes a decision they send me a note. I get the notice within two weeks after I sentence them, and they say if I have any feelings about when he is going to be paroled. I don't answer. It's strictly up to them.

MR. WINOGRAD: So you won't take one position either way?

THE COURT: I don't take any position.

Now, I told your lawyer that I would keep you out for the holidays not because of you, because of your family.

THE DEFENDANT: Thank you.

THE COURT: I know it's a tragedy to them, just like it's a tragedy to Mr. Weingrad's (Ph) family. I'm going to put this case on for December 4th for you to come in. I want to see you. Then I will set a sentence date after that.

In the meantime, you're to stay out of trouble which, obviously, all your life so far you have stayed out of trouble except this one incident, and don't get involved in anything. Just come back on December 4th and then I'll set the date for sentence, and at that time I'll give you the seven to 21 that I promised. Is that clear?

THE DEFENDANT: Yes.

THE COURT: Any other promises made by anybody?

THE DEFENDANT: No.

MR. WINOGRAD: Judge, there's one other thing. The promise -- the statement that I made to the family as well as Charles who stands before you is that the sentence date would be after December 3lst, I think the first week in January '96.

THE COURT: I did say that he would be home for the holidays, and the holiday is after December 4th.

MR. WINOGRAD: You are talking about the Christmas holiday?

THE COURT: Yes. I didn't talk about Thanksgiving.

(The defendant conferred with his attorneys.)

MR. WINOGRAD: I want to thank the court, your Honor, for all your efforts in trying to resolve this the best way possible. I have known this young man for in excess -- I know his father for 30 years. They're a good family. They are hard working. They work every day in the towing collision business.

Charles works every day. I have met him at their place of business. He is in dirty clothes fixing cars. It's a tragedy. It's a tragedy for the father who sits here of John Weingrad who these two men didn't know each other. It's just a tragedy.

THE COURT: I know it's a tragedy.

MR. WINOGRAD: As you said earlier, two families are deprived here. My condolences. And the Gampero family offers their condolences, the mother and father.

THE CLERK: What is your name?

THE DEFENDANT: Charles Gampero.

THE CLERK: Is Mr. Winograd, who stands beside you, your attorney?

THE DEFENDANT: Yes.

THE CLERK: Before accepting your plea of guilty you are advised that if you have previously been convicted of a predicate felony as defined in section 70.06 of the Penal Law, that fact may be established after your plea of guilty in this action now before this court, and you will be subject to different or additional punishment.

Mr. Gampero, do you now wish to withdraw your plea of not guilty heretofore entered to Indictment 15463 of 1994, and do you now wish to plead guilty to the crime of manslaughter in the first degree, a Class B felony, to cover this indictment; is that what you wish to do?

THE DEFENDANT: Yes.

THE COURT: You are also advised, Mr. Gampero, that on the date of sentence a mandatory surcharge of $150 will be imposed, and a $5 crime victims' assistance fee will be imposed. Those funds are to be on hand on the day of sentence to be paid, or else it will be coming out of the inmate's funds, out of the funds when you are incarcerated.

Step up, Mr. Gampero.

Sentence date 12/4.

THE COURT: 12/4.

Advise him and the family that probation will be in touch with them. He is to be candid with the probation Department.

* * *

It is hereby certified that the foregoing is a true and accurate transcript of the proceedings.

[Signed]
THERESA FARINA-MEISER, CSR, CM
OFFICIAL COURT REPORTER
SUPREME COURT-KINGS COUNTY