A convict paroled some 19 years ago after serving a prison sentence for shooting a man in the back is facing a murder charge now that his victim—who carried the bullet inside him—died of an infection.
Bronx Acting Supreme Court Justice Steven Barrett found no double jeopardy, speedy trial or due process issue could prevent Carlos Carromero from a murder charge in the May 2013 death of John Pugh. The judge cited Court of Appeals precedent in upholding the second-degree murder count returned by a Bronx grand jury several months ago.
Carromero shot Pugh in 1984, paralyzing him from the waist down, records show. He pleaded guilty to attempted murder in 1986 and served about 11 years of a 6-to-18-year sentence before being paroled in 1995.
Last year, Pugh died of sepsis, and the medical examiner said his death was directly related to the 1984 shooting that left a bullet lodged in his spine. After the jury’s indictment, Carromero was extradicted from Rhode Island, where he was living, and remains at Riker’s Island awaiting trial, according to his attorney, assigned counsel Kyle Watters of Manhattan.
Watters moved to dismiss the indictment on several constitutional grounds, all of which were rejected by Barrett, who found in People v. Carromero, 3488/13, that the shooting and Pugh’s death were adequately linked to warrant a new prosecution.
“[The medical examiner] opined that the infection that led to Pugh’s septic condition was a direct result of the gunshot wound,” Barrett said in an opinion May 1. “The evidence established sufficiently that defendant set in motion the events that ultimately caused Pugh’s death.”
Barrett said that despite the unusual passage of time between the shooting and the victim’s death, the case falls squarely within the “delayed death exception” to the double jeopardy rule.
“The fact that [Pugh] died some 28 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,” Barrett wrote.
The judge noted that the Court of Appeals held in People v. Latham, 83 NY2d 233 (1994), that a prosecution for murder after a prosecution for attempted murder does not violate the double jeopardy clause where 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.”
Barrett also rejected the defense argument that there was an implicit understanding between Carromero and the Bronx District Attorney’s Office that his guilty plea to attempted murder would end the case, regardless of whether Pugh died.
“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 prosecution for homicide, the instant prosecution is not barred by defendant’s earlier plea,” Barrett said.
The judge also turned aside Carromero’s argument that punishing him for the murder after he has already served more than a decade in prison would amount to cruel and unusual punishment. However, Barrett said that if Carromero is convicted of the murder, he would be entitled to credit for the time he has already served.
Watters said the ruling “stretches the purpose of the statute for sure, and should amount to double jeopardy.”
He said that in his research the longest period between injury and death in a delayed death case was four years. In that case, People v. Rivera, 60 NY2d 100 (1983), the defendant was convicted of reckless endangerment in 1976 and was later charged with, and convicted of, murder when the victim died in 1980.
Watters said Carromero, 59, thought he put the matter behind him when he pleaded to attempted murder and believes he has paid his debt.
“If he had said at his plea or at sentencing that there was an understanding that it would cover anything flowing from the incident, it would have probably prevented later prosecution for murder,” Watters said. “This is a cautionary tale for practitioners: If you take a plea when there is an injured complainant you need to make sure that the plea is with the understanding that it is in full resolution of the case.”
Watters said he will argue at trial that the sepsis resulted from faulty medical treatment, and not the lingering bullet.
Bronx Assistant District Attorney Adam Oustatcher represented the prosecution. There was no immediate reaction from the district attorney’s office.
By John Caher, New York Law Journal