007279 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS - CRIMINAL TERM - PART 39 -against- JABBAR COLLINS, DEFENDANT. . Indict. No. 2884/94 SENTENCE .360 Adams Street- Brooklyn, New York April 3, 1995 E: HONORABLE FRANCIS X. EGITTO, Justice. A A A S: OFFICE OF CHARLES HYNES, ESQ. DISTRICT ATTORNEY - KINGS COUNTY Attorney for the People BY: MICHAEL VECCHIONE, ESQ. CHARLES POSNER, ESQ. STACEY FRASCOGNA, ESQ. Assistant District Attorneys MICHAEL HARRISON, ESQ., Attorney for the Defendant 401 Broadway New York, New York DONNA MANNING, RPR OFFICIAL COURT REPORTER 007280 Proceedings THE COURT CLERK: This is on the sentence calendar, it is number 2, indictment 2884 of 1994, Jabbar Collins, and on the violation of probation calendar, number 3, Superior Court information 8907 of '90, Jabbar Collins. Counsel, your appearances for the record. MR. HARRISON: Michael Harrison, 401 Broadway, for the defendant, Mr. Collins. MR. POSNER: Charles A. Posner, Assistant District Attorney. MR. VECCHIONE: Michael Vecchione, Stacey Frascogna, Office of the District Attorney. THE COURT: Ms. Cline, you had an application before the Court. This is Anna Cline, who is the poolirepresentative. MS. CLINE: Yes, I do, your Honor. THE COURT: Is that what your title is? MS. CLINE: I am administrator for the Broadcasters Pool of New York. I have an application this morning for Channel 2 to videotape the sentencing of the defendant. At this point I won't make any remarks except to say, obviously, the prejudicial effect here is 007281 Proceedings nothing since there has been a trial and a conviction, and I will reserve any comments to answer objections that may come up. MR. HARRISON: If I may, the defense, of course, respectfully objects. THE COURT: All right. MR. POSNER: We take no position. THE COURT: This being an important case, in my opinion, for the purpose of the videotaping I will grantthe application, and you will file the order with the Administrative Judge. MS. CLINE: Yes. If I could have two minutes. 1 MR. HARRISON: Your Honor, if I may. THE COURT: Yes, sir. MR. HARRISON: My client respectfully requests the right to turn in a pro se 330.30 motion based on ineffective assistance of counsel, and so, therefore, I ask the Court's indulgence and permission to file these motions. I give one to the D.A. with affidavits. Here's one for the Court. THE COURT: Have a seat. Since it has been served now, have a seat, Mr. Harrison. 007282 Proceedings MR. HARRISON: Your Honor, I seem to have a whole bunch, a whole mess of other affidavits here. (Defendant and counsel conferred.) COURT: Mr. Vecchione. MR. VECCHIONE: Yes, your Honor. THE COURT: I know you and Mr. Posner, since you have just received it, would you like to read it and tell me if you wish to respond in writing or whether you can respond orally and I will -- MR. VECCHIONE: Yes, your Honor. Judge, your Honor, may I just ask the Court's indulgence for a moment. Do you have a copy of the THE COURT: Sure. MR. That is what we need. THE COURT: First of all, Mr. Harrison, these should have been filed with the Clerk's office and come down with a buck sheet. MR. HARRISON: Your Honor, I understand. At this juncture -- THE COURT: I understand. That is why I am taking it. MR. HARRISON: Excuse me? THE COURT: That is why I am taking them 007283 Proceedings because -- MR. HARRISON: Yes, your Honor. THE COURT: Do you want to be heard on it, Mr. Harrison, or have you read them? MR. HARRISON: Your Honor, I have gleaned them. Your Honor, at this juncture, with the issue being raised, obviously, is, in essence, ineffective assistance of counsel, which I would say, in essence, is as if premising that it was my fault that he was convicted therefor, I do not feel that way but do not necessarily have a position. THE COURT: Before I rule on that, have you any you reserve motions for the time of sentence? MR. HARRISON: Yes, that's correct. THE COURT: Have a seat, Mr. Posner. THE DEFENDANT: May I speak? THE COURT: You are going to get a chance to speak. You reserve your motions at this point? MR. HARRISON: Yes, I do. THE COURT: Okay. And I will hear you on the 007284 Proceedings motions. Then if Mr. Collins wants to talk on his motion before me, then I will hear him. Go ahead. MR. HARRISON: Naturally, the defense, pursuant to the law, would move to have the verdict set aside from the defense position inasmuch as the People have failed to meet their burden of proof beyond a reasonable doubt based on the evidence before the Court, based on the differences of the various identifications, based on the different descriptions, based on the lineup where there was no positive hit, and all the record before the Court, the defense respectfully requests that the verdict be set aside. THE COURT: Do you want to be heard? MR. VECCHIONE: Yes, your Honor, just very briefly. THE COURT: On that motion? MR. VECCHIONE: Yes. Your Honor sat through this entire trial, heard all of the evidence in the case and, most respectfully, I ask the Court to deny counsel's motions that the evidence in this case, it is not even weak, it is not.even strong, it is 007285 Proceedings overwhelming and was overwhelming, and the jury's verdict, within a very short period of time -- given the fact, your Honor, we had some readbacks and an examination of some of the evidence and a lunch hour in between -- the shortness of the jury's deliberation and the shortness of the verdict, I think, bears out the fact that this evidence was, in fact, overwhelming, and I would ask the Court to, most respectfully -- THE In effect, aren't you, Mr. Harrison and I am asking both of you -4 asking me to make an evaluation of the factual pattern in this case? MR. HARRISON: Your Honor, the defense simply puts forth the proposition that the People have not met their burden within the meaning of 330.30 of the Criminal Procedure Law. THE COURT: Okay. That I understand. MR. HARRISON: Therefore, by requesting a ruling -- THE COURT: From what you are pointing out, you are requesting me to make a judgment in place of the jury; I thought that was in his original affidavit. 007286 ,Proceedings MR. VECCHIONE: Against the weight of the evidence; that is what I thought. MR. HARRISON: For the verdict to be set aside. THE COURT: All right. That is denied. MR. HARRISON: Exception for the record. THE COURT: On the motion to find that Mr. Harrison was an inefficient lawyer, do you want to talk about it? THE DEFENDANT: Yes, your Honor. MR. VECCHIONE: Just before Mr. Collins begins, I would be prepared to argue this now. I don't need time to respond. THE COURT: Go ahead. THE DEFENDANT: Your Honor, I submitted a 330.30 motion as to ineffective assistance of counsel. THE COURT: I know. THE DEFENDANT: Meaning that Mr. Harrison was aware of several alibi witnesses who were willing to testify at my trial but not allowed to because of Mr. Harrison. Therefore, you have signed affidavits of several witnesses saying that they were willing to testify and they were not allowed 007287 Proceedings to testify because of Mr. Harrison. Also, I ask that the verdict be set aside on the grounds that my Sixth Amendment right to counsel was violated during lineups. The lineups. were not suppressed. They were held in violation of my Sixth Amendment right of counsel. Also, the Court failed to hold an independent hearing to determine if an independent source existed for in--court identifications made by two prosecution witnesses, and also because the People failed to prove the case beyond a reasonable doubt. My memorandum of_law was submitted to you and the signed affidavits -- THE COURT: Right. THE DEFENDANT: are there also. THE COURT: If I recall correctly, you did not testify. THE DEFENDANT: Yes, I did, sir. THE COURT: You did testify? MR. VECCHIONE: Yes, he did, sir. THE DEFENDANT: I did take the stand. THE COURT: Oh, I am sorry. One moment. I have had so many cases lately. 007288 10 Proceedings I am sorry, you are right. It was on March 13. Oh, I recall, I think. MR. VECCHIONE: This is just before summation, Judge, you remember. THE COURT: I think that was on'a Friday. We summed and charged this case on a Monday,-and on Friday I went into a very long discussion with you on whether you wanted to testify or call witnesses, isn't that right? THE DEFENDANT: Not a very long discussion, sir. You asked me if I wanted to take the stand at the time. THE COURT: I asked you if you wanted to take the stand or to call witnesses, isn't that right? THE DEFENDANT: NO, Sir, I don't believe it is. I believe you asked me if I want to take the stand. THE COURT: The record will speak for itself. THE DEFENDANT: Exactly. 1 THE COURT: I believe I told you you have an absolute right to put in a defense, to testify and to call witnesses. You said you were abiding by Mr. Harrison's motion that he made to me that the People rest and that we went over Friday and I was 007289 11 Proceedings going to have summations and charge first thing Monday morning and on Monday morning you came in and said you were willing to testify. THE DEFENDANT: Yes, Sir. THE COURT: And I allowed you to testify, correct? And you didn't ask me about calling any witnesses? THE DEFENDANT: It was understood -- THE COURT: No. Follow me. THE DEFENDANT: All right. THE COURT: You did not ask me for the right to call witnesses, did you? THE DEFENDANT: No, not at that time I didn't, Judge. THE COURT: All right. THE DEFENDANT: May I comment? THE COURT: I heard you. I want to hear what the D.A. will say. I heard you on your motion. You can be seated. Mr. Posner and Mr. Vecchione. MR. VECCHIONE: Your Honor, I have perused the papers and, frankly, the motion is nothing more than boilerplate probably gotten from a jailhouse lawyer over wherever Mr. Collins is 007290 12 Proceedings presently residing. It lays out the classic Strickland v. Washington argument which attacks trial strategy by a defense attorney as opposed to ineffective assistance of counsel. I recall during the course of this trial that before Mr. Harrison would even so much as ask for a lunch break or ask the Court for a break of any kind, that he would consult with his attorney his client so that he would make it absolutely certain for the record that it was his client's decision to do each and every thing that occurred during the course of this trial to the extent, quite frankly, Judge, it was exasperating to me because I felt Mr. Harrison was a competent lawyer, someone who has been practicing before these courts for many years. THE COURT: And very successfully, I might say. MR. VECCHIONE: And successfully. He has tried cases against me in the past. I know he is a very careful attorney. Before he did anything, he consulted with his client. If he were to ask questions and get the consultation of his I am sorry -- if he were to seek consultation from his 007291 13 Proceedings client before asking for mundane things during the course of the trial, if there is anything mundane in a murder trial, I can't imagine that he took it upon himself to make the decision to not call 'alibi witnesses and to initially not call the defendant to the stand. However, your Honor was willing and gracious enough to allow Mr. Harrison and Mr. Collins to reopen their case on a Monday morning, before we were all ready to sum up, so that Mr. Collins could testify and if he had witnesses, they could be called. He had witnesses sitting in the audience on the Friday that he rested. He had witnesses sitting in the audience on the day that he asked the Court to reopen his case so that he could testify. As a matter of fact, part of my cross--examination was to ask him where several of those witnesses were that he claimed were with him on the day of this homicide at the time it had occurred and he pointed them out in the audience. THE COURT: They had the woman in the audience. MR. VECCHIONE: That's correct. His mother, 007292 14 Proceedings who gives an affidavit, is here again today. She gives an affidavit saying he was with her. She was here during the course of this entire trial. I don't recall anybody ever stopping the defense from calling her to the stand; Clearly, your Honor, this was strategy on the part of the defendant and his attorney after consultation with each other and with the defendant's family. Mr. Harrison I saw in consultation with Mrs. Collins many, many times. during the course of this trial, including conversations that she had with him and an investigator. So this is just another attempt at the 11th hour to thwart what is, it seems to me, an absolutely overwhelming case of guilt against this defendant. I might also point out, your Honor, that I have in front of me seven I am sorry six affidavits -- THE COURT: Go ahead. MR. VECCHIONE: -- that claim to be alibi affidavits of witnesses who say that Mr. Collins was with him at a particular time. At no time other than Mrs. Collins and Luisa Lopez, whose 007293 15 Proceedings affidavits are in here, did we get notice of alibi from any of these witnesses. THE COURT: And Mr. Collins did not mention six people when he was on the stand. MR. VECCHIONE: He mentioned several people, his brother being one of them, his mother being another -- THE COURT: Yes. MR. VECCHIONE: Ms. Lopez being another, all of whom were here during the course of this trial, if not on that particular day. Absolutely no one stopped him from doing anything in this case. As matter of fact, I was quite perturbed that 'your Honor allowed him to reopen this case at the time. We had all settled in. I didn't have a file with me that day. I was prepared to sum up and to do nothing else because you had made a full and complete record on Friday as to whether or not the defense was going to rest, and he made a decision to rest. Clearly, your Honor, this is the kind of thing that smacks of desperation as to Mr. Collins' testimony on the day that he 007294 16 Proceedings testified smacked of, and I would ask the Court to dismiss and to not even entertain any longer this last-ditch effort on the part of Mr. Collins to set aside this verdict on.grounds that are clearly bogus. Judge, it is very difficult for a prosecutor to speak on behalf of a defense attorney but in this case I feel I am compelled to do so. Just one last thing. Mr. Harrison is very careful and has been very careful throughout this entire trial. If strategy--wise they have come up with a decision that has resulted in a conviction because the evidence was overwhelming, then so be it. The Courts don't speak to that. That is what this clearly is. I would ask the Court at this point to dismiss the 330.30 motion and to sentence the defendant today. THE COURT: As a matter of fact, talking about Mr. Harrison's carefulness, I think that that started even with jury selection, if I remember correctly. MR. VECCHIONE: Yes, it did, Judge. THE COURT: He did not even pick a juror 007295 1'7 Proceedings without first consulting with the defendant. MR. VECCHIONE: That's correct, and it continued until this morning when your Honor asked us about the motion to allow the cameras in the courtroom. Mr. Harrison indicated that he had a position but he would notarticulate that position until he spoke to his client and that his client's position would be the one that he put forward onl the record. I So his carefulness about decision--making in this case continues up to the moment, Judge. THE COURT: Just give me one more minute. (Pause) THE COURT: The motion in all respects is 'denied. And, as a matter of fact, even the last--ditch effort by the defendant to, when Mr. Harrison advised the defendant that it would be in his best interest not to testify, which I fully agreed, the defendant expressed his desire to testify and Mr. Harrison acceded to that request, as he did for every request the defendant made during the course of the trial. The motion is denied. You have an exception, Mr. Collins, and this record will become part of 007296 18 Proceedings the record on appeal. And, Mr. Harrison, I am directing you, after I impose sentence, to file a notice of appeal. MR. HARRISON: I will. THE COURT: And if the defendant continues to _be indigent, to request assignment of counsel in the Appellate Division. I may not recall it at the time after I impose sentence but I am directing to you to do that, and this record will be this motion will be part of the court record. I will have it filed upstairs, entered into the court records, and this way it will be part of the appeal if and when one is taken. MR. HARRISON: Yes, your Honor. THE COURT: John. THE COURT CLERK: Is the defendant ready for sentence? THE DEFENDANT: Yes, I am. THE COURT CLERK: Please stand. What is your name? THE DEFENDANT: Jabbar Collins. THE COURT CLERK: Is Mr. Harrison who stands beside you your attorney? THE DEFENDANT: Yes. 007297 19 Proceedings THE COURT CLERK: Before sentence is pronounced, you are advised that you, your attorney and the district attorneys have a right to make a statement. Mr. Vecchione, did you wish to make a statement? Mr. Posner?_ . MR. POSNER: Yes. I previously served notice on the Court, and I-served a copy to Mr. Harrison, of the desire of the wife of the deceased, Mr. Pollack, to address the Court. Her name is Rivka Pollack and she would like to address the Court as to sentencing. ATHE COURT: Rather briefly, I presume. MR. POSNER: Yes. Ms. Pollack. THE COURT: You gentlemen can be seated. Yes, ma'am. MRS. POLLACK: I have to begin by telling you that I am very proud person. My feelings really lie within me and my thoughts are not easily read, but I felt in this case that I had to get up and plead with you to act in a manner which will add a drop of comfort to our lives and maybe give a bit of rest to my husband's soul. To backtrack just a moment, every young girl 007298 20 Proceedings dreams of her wedding day. I not only dreamed of it but I lived for the day when I get married. I was orphaned of my parents and my grandparents when I was a child, and I only looked forward 'towards be able to have my own home, and my husband and I would raise our children in our home. Our children were born in quick succession, and I need not tell anyone present in the courtroom how difficult it is to raise children, to provide for the emotional, spiritual and physical needs of one's children even when you have the most devoted of two parents, but we felt we were succeeding. We were tested in our marriage when my youngest was six months, my fourth child. My husband underwent double valve replacement surgery in the intensive care unit of Mount Sinai Hospital. Setbacks set in. He had a stroke. He had pneumonia. He had infections. Recovery was slow but the outpouring of love and bearers was strong. I didn't become a widow. My children were not orphaned. They still had their beloved father. 007299 21 Proceedings Last February of '94 my youngest who is now nine months old, my oldest was 12. Several weeks ago I was asked whether I ever accompanied my - husband to the building to collect rent. I answered no; I was asked why and Mr. Harrison objected to that question, he didn't allow me to answer, but the answer is, of course, that I had nine children to care for, to feed, to clothe, to send off to school, to greet them when they came home. My husband worked six days a week. He worked very long hours.2 We didn't have any government handouts. After work anyone needing a few dollars for a few days, the car for a few hours, anyone needing a sympathetic ear could call on us at my house. The defendant sitting here in this courtroom is not a destroyer of one life. He is a destroyer of several lives. He destroyed the love of the father of my children. He destroyed the love of my dear husband. He destroyed a dear friend of his best friends. He destroyed a much beloved person to all those who knew and loved him. He destroyed the youngest child of my mother--in--law. My mother--in--1aw was 44 when she gave birth 007300 22 Proceedings to my husband. She was, of course, overjoyed. My mother-in--law and I are now widows together. My mother-in-law lost her husband exactly three years before she lost her youngest child. once thought that the death penalty was the cruelest of punishment but I was never the victim of a crime. I was innocent. Now I see that is not so. I wish the defendant here, I wish my husband's murderer a very, very long, long life in jail. He forfeited his right to live as a normal, functioning human being. He has no right to see the sunshine. He has no right to walk in the park, to hear children. He has no right to do anything which normal or functioning human beings does. I want him to pay daily for what he has done to our lives as we will grieve daily from what we has done to our family. May no one ever experience the sorrow and grief we who remain must live with until the end of our lives. Thank you. THE COURT: Mr. Posner. MR. POSNER: Thank you, your Honor. What struck me about the preparation of this 007301 23 Proceedings case was that all the witnesses who lived in this building, 126 Graham, where Abraham Pollack was attempting to collect some rents and manage his building, all came forward and said the same thing:' This was a gentle caring man who cared about them; they cared about him. One tenant had rent. The other tenant-needed money. He took the rent from one, he handed it to the next person. He paid all his merchants on the block in cash. He paid all his bills He came there regularly and cared for his building, so regularly that it proved to be his downfall, because he came every Sunday without fail to care for his buildings. He is a simple man whose records were 'kept by the cash in one pocket from one source and the cash from the other source in the other pocket. He paid his bills in cash. Where his tenant had a check and they needed it cashed and they didn't have a paycheck cashing service, he paid it for them. He would take his rent and give him back his money. This was his downfall. Everyone knew he carried cash and he came there regularly; the first Sunday of every month he would be 007302 24 Proceedings there. And so this defendant, this person who stands convicted of his murder, got together to snort some drugs and to listen to and to plan the death of this man, to plan the murder of this man. I think it is time to send a message to those who will stand in a stairwell and plot the death of good citizens with nine millimeter guns that are destroying our borough. I have stood here many times before in this court asking you to send a message to those who will take nine millimeters and end the right of people who have a right to live and do business in the borough where we all live. I will not say anything more particularly about thisperson because you have admonished me in the past that all victims are important and all people's lives are valuable, all victims have a right to live, deserve to be alive, but we've got to say be something to the people who deal drugs, carry nine millimeters, load a nine millimeter, stand and wait for somebody trying to do some business and then brutally murder them, unnecessarily murder them. 007303 25 Proceedings I am asking that I would like to ask the following in regards to the sentence, and I am going to ask you something that may possibly be beyond what the Court has considered. But in View of the"facfs feel I am compelled to ask for it. This defendant was convicted both of intentional murder and felony murder and robbery one. He shot this man once in the stomach. 'He was bleeding bright red. He was fighting with this defendant when Mr. Paul Avery, who was also a victim of the crime, just moments later came upon the scene. The medical examiner testified that. any one of three wounds could have proved fatal, including that initial stomach wound, to the deceased, Mr. Pollack.' He could have stopped at that point, completed his robbery and then left, and he might have survived to see his wife and his nine children again. After fighting with Mr. Avery, putting a bullet in Mr. Avery's leg, falling to the ground, all three of them together, having Abraham Pollack lying on the ground incapacitated, Mr. Avery lying beside him, this defendant then makes a separate decision and, I 007304 26 Proceedings suggest, an independent decision, one which was an unnecessary afterthought, to quote People v. Tannerite, 30 N.Y. 2d 102 and I have a copy for the Court and a copy for counsel as an unnecessary afterthought, he puts five more bullets, five more nine millimeter bullets into the body of Abraham Pollack, thereby assuring and insuring that he will die as well as be robbed that day._ I am asking you to impose the maximum sentence you can, 25 to life for the life, for the intentional murder of Abraham Pollack. I am also asking consecutively that you impose 12 and a half to 25 for an armed violent felony offense for the robbery in the first degree to run consecutive to the intentional murder under the authority of People v. Tannerite, and run the felony murder which has to be concurrent to those two. iAfter he was finished finishing off Mr. Pollack, he decided to finish off Mr. Avery. It is no wonder that Mr. Avery could not identify this defendant while others very clearly did, but probably the one thing he would remember as the muzzle flash as the shot to finish him off was 007305 27 Proceedings fired into Mr. Avery's chest, Mr. Avery survived. I am asking that you give the maximum for the attempted murder of Mr. Avery to run consecutive, to run consecutive to the time on the robbery and consecutive to the time on the intentional murder; that all three run consecutive. These are three separate, independent crimes. I would also submit to the Court that the possession of the weapon, the criminal possession in the second degree, should also run consecutive to the other three crimes. He possessed it independently. He came to this crime possessing it. He stood in the hallway for some 20 minutes possessing it. He should not be allowed to have the free ride on that. It is an independent charge under the law. The jury clearly convicted him of it, and that should run consecutive as well. This defendant has had a short brief drug--filled violent life. I know he has a Y.O. which also was a violent crime that he was sentenced for. It is time to take this person, to take him out of our borough, send a message to the rest of the people over at 126 Graham and those 007306 28 Proceedings environments that those who come to do business can do business and live their good lives free of the violence that this man represents. Thank you. THE COURT CLERK: Mr. Harrison, do you wish to make a statement? MR. HARRISON: Yes, your Honor. The defense would ask for the minimum sentence under the law to run concurrent. yI would point out that my clientis family is in the audience and his family members have been here the entire time, and I would ask for the mimimum sentence. Thank you. THE COURT CLERK: Mr. Collins, do you wish to say anything on your own behalf with respect to sentence? THE DEFENDANT: Yes, I do. THE COURT CLERK: Please stand and make your statement. THE DEFENDANT: From the first time the police had Contact with me, I never showed any signs I was guilty and when the police first wanted to contact me, I walked down to the oo73o7 29 Proceedings precinct on my own and volunteered for the lineup. In the lineup I wasn't identified, and I went home and went about my life. When they came back the second time, I went down to the precinct to see what they wanted. A guilty man does not volunteer himself down to the precinct for investigation. A guilty man does not walk into a precinct when the police want to come and arrest him for a murder. Through this whole trial I have shown nothing, I have shown no signs of guilt, and I am not guilty. I never had anything to do with the death of Mr. Pollack. From what I hear, he was a good man, and I sympathize with his family for his loss. I am not guilty and I am not the man who killed him. There was not overwhelming evidence in this case. Several of the witness who were in the building with Mr. Pollack who walked in the building before said they saw the perpetrator standing in the lobby but they didn't identify me as the perpetrator. As a matter of fact, the only people who did identify me supposedly came from two people who saw a man fleeing from the scene of 007308 30 Proceedings the crime after the gunshots were fired. I am not the man who killed Mr. Abraham Pollack. I am totally innocent of all charges. Thank you. MR. VECCHIONE: 'Judge, before you conclude, may I just say one thing? THE COURT: Sure. MR. VECCHIONE: Your Honor, obviously, Mr. Posner says everything that the District Attorney's Office wanted to say, except that I personally have to say one thing about Mr. Collins. It is just because of what he said now. He talked about how he walked into a precinct on two occasions, in terms of himself, 'free and clear of any kind of guilt or any kind of worry that he would be arrested. The point is, Judge, that between the day of this crime and the day that he walked in and was arrested some, about a month later, he and his cohorts had been putting threats out on the street, had been threatening people who were present in that building. It was a closed environment, 126 Graham Avenue. Everybody in that building knew who did this. Everybody in that 007309 31 Proceedings building knew that they were to keep their mouths shut because Charlie Glover, who was the person who was the accomplice in this case, lived in that building and continued to live in that building. Mr. Collins was a drug dealer who had operated in and around that building along with Charlie Glover, and everybody we have spoken to, including the people that we have now had to relocate to different parts of this country, knew who did this and were willing to come forward in spite of that because of what the District Attorney's Office promised that we would do for them in terms of relocating and remove the danger that this person presented. So for him to stand before the Court to say that he walked into a precinct because he was innocent is outrageous, Judge. He walked in because he had thought he had taken care of all the witnesses in this case in some shape,_manner and form. Witnesses sat in my office shaking because of what had occurred on the street after this homicide. So I need the Court to know and I want the record to be clear that he walked in because he 007310 32 Proceedings had thought he had taken care of everybody, Judge, and that's why he felt a measure of comfort. However, it turns out that a jury of twelve people said that he is not innocent and he is, in fact, guilty of this crime. THE COURT: You know, what impressed me most about this case was a little man who was given permission to sleep in the basement of this apartment at 126 Graham and who, on occasion, would mop a floor or sweep a hallway, and he jumped upon an armed robber to try to protect Mr. Pollack. Bravery like that does not exist in our city. He came in here limping from the bullet wound inflicted by the perpetrator. He sustained injuries which he suffers from to this day, little Paul Avery. I think somewhere it says, "Greater love hath no man that he lay down his life for his friend." But he was quite a hero. Now, the sentence of the Court on the murder in the second degree and I don't agree with Mr. Posner that I can run some of these consecutively, although I would like to; I would like to be able to sentence this defendant to life without parole because I think that's what it 00731 1 33 Proceedings mandates and not just life in the correctional facilities that we have in our state but life in a penal institution at hard labor, that's what I think this case deserves on murder in the second degree, intentional, 25 to life. Murder in the second degree, felony murder, 25 to life; that is the killing of Mr. Pollack. 1 The attempted murder of Mr. Avery, eight and a third to 25 to run consecutive to the robbery in the first degree, 12 and a half to 25, to run concurrent with the homicide. Assault one, five to 15. Criminal possession in the second degree, five to 15. Criminal possession in the third degree, two and a third to seven. These sentence to run concurrently but the sentence to the murder in the second degree and the attempted murder in the second degree are to run consecutively. That's the sentence of the Court. THE You are advised you have a right to appeal from the sentence just imposed upon you by filing a notice of the appeal by with the clerk of this court, in duplicate, within 30 days from this date. similar notice must be served on the District Attorney of Kings County. 007312 34 Proceedings If you cannot afford to retain counsel for this purpose, you may apply to the Appellate Division, Second Department, at 45 Monroe Place in Brooklyn, and request that counsel be assigned to you for the purpose of prosecuting your appeal. The sentence of the Court is, under the murder in the second degree, intentional, 25 years to life. Under the second count of murder in the second degree, 25 years to life. Under the attempted murder in the second degree, eight and a third to 25 years, that sentence to run consecutive to the murder counts. Under robbery in the first degree, eight and a third to -- MR. VECCHIONE: 12 and a half. THE COURT: 12 and a half. THE COURT -- 12 and a half to 25 years. Under assault in the first degree, five to 15 years. Under the criminal possession of a weapon in the second degree, five to 15 years. And under the criminal possession of a weapon in the third degree, two and a third to seven. Each of those sentences to run concurrently. THE COURT: Do you have a copy of the -- THE COURT CLERK: Judge, as to the VOP. 10007313 35 Proceedings THE COURT: Yes. Now, this_defendant is charged with violation of probation. Based on the conviction in this case, how does he plead, Mr. Harrison? MR. HARRISON: He pleads not guilty. THE COURT: He wants a hearing on it? I am asking you. MR. HARRISON: Yes. THE COURT: Ask him. MR. Yes. (Defendant and counsel conferred.) MR. HARRISON: No, your Honor, he doesn't. THE How does he p1eaa2 MR. HARRISON: Guilty. THE The sentence of the Court to the attempted robbery in the third degree, he had been given five years probation by Mr. Justice Cirigliano, the sentence is one and a third to four, that sentence to run consecutively to the sentence in this case. MR. VECCHIONE: Thank you, Judge. THE COURT CLERK: As to the mandatory surcharge, Judge? THE COURT: That is imposed. 007314 36 Proceedings THE COURT CLERK: Imposed. And crime victims' assistance fee of THE COURT: Imposed, to be taken out of inmate funds. By the way, the violation of probation consists of the conviction in this case? MR. VECCHIONE: Yes. Thank you, Judge. MR. POSNER: 'Thank you, Judge. THE COURT: The defendant is remanded. Probation report to follow. Mr. Harrison, this motion -- MR. HARRISON: Yes, your Honor. THE COURT: The motion, Mr. Harrison, that was filed by you on behalf of the defendant, would you bring it to the tenth floor. Have them put a buck sheet on it and tell them what it is and tell them to send it back to me, please. MR. HARRISON: Yes, your Honor. Your Honor, off the record. (Discussion held off the record at the bench.) MR. VECCHIONE: Judge, are you done with us? THE COURT: Yes. 007315 37 Proceedings MR. VECCHIONE: Thank you Judge. 1 It is hereby certified that the foregoing is a true and accurate transcript of the proceedings. DONNA MANNING, RPR OFFICIAL COURT REPORTER SUPREME COURT-KINGS COUNTY