Defendant stands indicted for one count of murder in the second degree based on the September 8, 1984, shooting of John Pugh. The evidence presented to the Grand Jury established that defendant fired one gunshot into the back of Pugh. The bullet lodged in Pugh's spine, and as a result, Pugh was paralyzed from the waist down. Over twenty-eight years later, on May 10, 2013, Pugh died. Defendant was initially arrested with respect to this incident on September 3, 1985, and was subsequently indicted for attempted murder in the second degree and related charges (Ind. No. 4283/85). On March 19, 1986, defendant pled guilty to attempted murder in the second degree, and, on August 5, 1986, was sentenced to an indeterminate term of imprisonment of six to eighteen years. On August 28, 1995, having served almost ten years of his sentence, defendant was released from prison.^[FN1] As indicated above, on May 10, 2013, the victim, John Pugh died. On May 17, 2013, Dr. Susan Ely, the Acting Deputy Chief Examiner of the Bronx County office of the Office of the Chief Medical Examiner performed an autopsy on Pugh. Dr. Ely concluded that the immediate cause of Pugh's death was sepsis, which stemmed from complications caused by Pugh's paraplegia, which was the result of the bullet that had lodged in Pugh's spine. On November 6, 2013, defendant was arrested in Providence, Rhode Island, and, on November 8, 2013, defendant was arraigned on a felony complaint charging him with murder in the second degree and was remanded. In the instant motion, defendant contends that the indictment should be dismissed on the following grounds: 1) the evidence presented to the Grand Jury was legally insufficient; 2) the instant prosecution is barred by double jeopardy; 3) defendant's due process right and constitutional right to a speedy trial were violated; 4) the [*2]instant prosecution violates the constitutional prohibition against cruel and unusual punishment; and 5) under the circumstances of this case defendant has a right to immediate appellate review of the above issues. In addition, defendant moves, in limine, to preclude the use of the factual admissions made by defendant when he pled guilty to attempted murder in the second degree. For the reasons given below, defendant's motion is denied.

After inspecting the Grand Jury minutes, the Court finds that the evidence before the Grand Jury was legally sufficient in all respects to establish each count and that the instructions to the Grand Jury were proper. Specifically, with respect to the sufficiency of the evidence of causation, as noted above, the People presented the testimony of Dr. Ely who performed an autopsy on Pugh. In pertinent part, Dr. Ely opined that Pugh died from sepsis, which she described as an overwhelming infection that causes most of the body's major organs to fail. Dr. Ely testified that Pugh's sepsis was the result of "infectional complications" (pneumonia, infected bedsores, bladder infection) caused by the bullet that had gone through Pugh's spinal cord which had rendered Pugh a paraplegic. Dr. Ely opined that the infection that led to Pugh's septic condition was the direct result of the gunshot wound. This evidence established sufficiently that defendant set in motion the events that ultimately caused Pugh's death and that his actions were a sufficiently direct cause of Pugh's death. See People v. Brengard, 265 NY 100 (1934)(Court abrogates common law rule that indictment for murder does not lie where death occurs more than a year and a day after assault and finds legally sufficient evidence of causation where gunshot wound in spinal column occurred four years prior to death.); People v. Kane, 213 NY 260 (1915)(evidence of causation sufficient where gunshot wound caused pregnant woman to miscarry and subsequently die due to septic condition relating to the miscarriage); People v. Stewart, 40 NY2d 692, 697 (1976)(direct [cause] does not mean immediate and defendant may be held to have caused the death even though it does not immediately follow the injury); People v. Hicks, 20 AD3d 695 (1st Dept. 2005)(evidence of causation sufficient where victim's death from broncopneumonia occurred thirteen days after victim shot in face).

Defendant's motion to release the Grand Jury minutes is denied since release of the Grand Jury minutes is not necessary to assist the Court in determining defendant's motion, and, in any event, any benefit to such release at this juncture in the proceedings is outweighed by the need to preserve grand jury secrecy. See CPL 210.30(3); 190.25(4)(a).

Moreover, the instant prosecution for murder in the second degree is not barred on double jeopardy grounds. Initially, the Court of Appeals has held that in the case of delayed death, under the Blockburger test (284 U.S. 299, 304 (1932)) to determine whether a subsequent prosecution violates the Fifth or Fourteenth Amendment prohibition against double jeopardy, a second prosecution for homicide following a conviction of attempted murder is not barred "because the consummating element of death distinguishes the two offenses, and is not known to or discoverable by the People at the time of the first prosecution." People v. Latham, 83 NY2d 233, 238-9 (1994).^[FN2] Likewise, under New York State law with respect to double jeopardy, the instant [*3]prosecution falls within the delayed death exception to the statutory double jeopardy prohibition. CPL § 40.20(2)(d); People v. Latham, supra, 83 NY2d at 238; People v. Rivera, 60 NY2d 110, 115 (1983). The fact that defendant died some twenty-eight years after the shooting incident is of no moment with respect to the applicability of the delayed death exception since there is no temporal limitation written into the statute and there is no case cited by defendant or otherwise that imposes such limitation. See CPL § 40.20(2)(d).

Equally unavailing is defendant's contention that the instant prosecution is barred by an implicit understanding made by the parties when defendant pled guilty to attempted murder in the second degree that defendant would not be subsequently prosecuted should Pugh die. As the Court found in Latham, "New York does not adhere to a subjective double jeopardy rule. . . neither a defendant's asserted belief that his plea would end all criminal exposure stemming from his conduct nor the fact that death was reasonably forseeable at the time of plea can prevent as a matter of double jeopardy a subsequent prosecution for murder in the second degree." People v. Latham, supra, 83 NY2d at 239. Because there is nothing in the transcript of defendant's 1986 plea allocution indicating that an explicit promise was made to defendant that the plea would foreclose subsequent prosecution for homicide, the instant prosecution is not barred by defendant's earlier plea.^[FN3]

Nor should the indictment be dismissed as a violation of defendant's due process right to prompt prosecution or his constitutional right to a speedy trial. As the People note, the homicide offense was not consummated and subject to prosecution until the moment of Pugh's death. See People v. Rivera, supra, 60 NY2d at 114 ("it is impossible to prosecute anyone for homicide until the victim is dead"). Thus, the pre-arrest delay in this case, measured from when Pugh died on May 10, 2013, until defendant's arrest on November 6, 2013, is less than six months. When considered in the context of the instant murder charge, such delay is de minimis. In any event, even if the Court considers the period of delay to be the twenty-eight years prior to the instant arrest for murder, defendant has failed to advance any claim or contention that his defense will be significantly impaired by the delay. See People v. Decker, 13 NY2d 12, 15 (2009)(Court opines that there is no specific temporal period by which a delay may be considered presumptively prejudicial and finds lack of prejudice to defendant notwithstanding 15-year delay to bring murder charge); People v. Chatt, 77 AD3d 1285 (4th Dept. 2010)(defendant not denied due process right to prompt prosecution, notwithstanding the fact that some degree of prejudice may have been caused by 33-year delay prior to indictment for murder).

Defendant's next claim that this prosecution violates the Federal and State prohibitions against cruel and unusual punishments is both premature and baseless. It is premature because it presupposes that defendant has been convicted of the instant murder charge. It is baseless because it is premised upon the mistaken belief that, should defendant be convicted, he would not be given credit for the jail time he has already served for the attempted murder conviction. The Court, however, is not so limited. Indeed, in order to satisfy the double jeopardy prohibition [*4]against multiple punishments for the same offense, the Court would be required to give defendant credit for the approximately eleven years he has served against any sentence imposed on a conviction for murder. See People v. Williams, 14 NY3d 198, 217 (2010)(the Double Jeopardy Clause of the Fifth Amendment covers three distinct protections, including the right not to be punished more than once for the same offense); People v. Biggs, 1 NY3d 225 (2003).^[FN4]

Certainly, had defendant not already completed his sentence on the attempted murder conviction, both the Double Jeopardy Clause and Penal Law § 70.25(2) would require that any sentence imposed on a subsequent murder conviction would have to run concurrently to the undischarged sentence on defendant's attempted murder conviction. Matter of Latham v. New York State Department of Correctional Services, 296 AD2d 675, 676 (3rd Dept. 2002); see also People v. Laureano, 87 NY2d 640 (1996). In the instance where a prior sentence has been completed, as here, in order to prevent multiple punishments barred by double jeopardy, the Court would have the authority to give defendant full nunc pro tunc credit for the time he previously served on the attempted murder conviction against the minimum period of any indeterminate or the term of any determinate sentence imposed on any subsequent murder conviction. See CPL § 70.30 (1)(a); Matter of Latham v. New York State Department of Correctional Services, supra, 296 AD2d at 676. Because defendant has already completed his sentence on the attempted murder conviction, should defendant be convicted of the instant murder charge, the Court cannot run the sentences concurrently. However, consistent with the constitutional prohibition against double jeopardy and the constitutional concern for fundamental fairness, should defendant be convicted of the instant murder charge (or plead guilty to a lesser offense), the sentence imposed will include a Court directive to the Department of Corrections to give defendant credit for the time he served on the attempted murder conviction by directing the sentence to be nunc pro tunc to the specified periods during which defendant was incarcerated on his attempted murder conviction. Thus, by so giving defendant such credit, the maximum sentence he could receive in the aggregate for both convictions would not constitute double punishments and would not exceed the statutory maximum for this crime. Based on defendant's alleged actions, any such aggregate sentence would comply with both the penal law and the constitutional prohibitions against cruel and unusual punishment and double jeopardy.

Defendant's final claim for dismissal of the indictment — to afford expedited and interlocutory appellate review of the issues raised in the instant motion before resolution of the new charge — is utterly devoid of merit. Defendant cites no legal authority in support of this proposition because there exists no such basis for dismissal of an indictment. See CPL § 210.20. Of course, to the extent the issues raised in the instant motion are preserved for appeal, should defendant be convicted of the instant murder charge, he will have the right to raise them again on direct appeal. See CPL § 450.10. [*5]

In light of the fact that defendant has never successfully moved to withdraw or to set aside his plea to attempted murder, defendant's motion to preclude the use of his prior guilty plea at a trial on the instant charge is denied. See People v. Latham, 90 NY2d 795, 799 (1997)(fact admissions made by defendant during his attempted murder plea allocution properly received in evidence at subsequent trial for murder).

On consent of the People, defendant's motion seeking a Huntley/Wade hearing is granted. However, defendant's motion for a Dunaway hearing is denied because defendant, who has been served with a felony complaint and has received discovery that details the charges against him, has failed to set forth any sworn allegations of fact that would support a Dunaway claim. Defendant's mere inclusion of general boilerplate language in his motion that his statements were the product of improper and unlawful police conduct does not satisfy his burden of alleging sufficient facts to warrant a hearing.Accordingly, except to the extent of granting a Huntley/Wade hearing, in all other respects, defendant's motion is denied.

This decision, order and opinion of the Court amends and supersedes the Court's decision dated April 1, 2014.

__________________________

Dated: May 1, 2014Steven Barrett, AJSC

Bronx, New York