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UNITED STATES EX REL. WILLIAMS v. DEEGAN

October 17, 1967

UNITED STATES of America ex rel. Robert V. WILLIAMS, Petitioner,
v.
Hon. John T. DEEGAN, Warden of Sing Sing State Prison, Ossining, New York, Respondent



The opinion of the court was delivered by: CROAKE

MEMORANDUM

 CROAKE, District Judge.

 This is a pro se application for a writ of habeas corpus. *fn1" Robert V. Williams, the relator, alleges that refusal of the trial court to grant a request for withdrawal of his previously entered guilty plea deprived him of his right to a speedy trial as guaranteed by the Sixth Amendment. He further suggests that the denial of his application to appeal to the New York State Court of Appeals and the conduct and remarks of the prosecutor during trial amounted to a deprivation of due process within the meaning of the 14th Amendment. Finally, relator claims that as a result of delay he was denied his constitutional right to confront particular witnesses as guaranteed by the Sixth Amendment. As these claims go to the particular conduct of the several state courts and the time consumed in their respective deliberations, the procedural history of this case is recounted in some detail.

 The case arose out of an indictment filed on May 23, 1963, charging the petitioner and one Leroy Toland with the crimes of robbery, first degree; grand larceny, first degree; and assault, second degree. *fn2" At his arraignment on May 29, petitioner pleaded not guilty. On June 18, he withdrew his former plea and pleaded guilty to the crime of attempted robbery in the third degree to cover all counts of the indictment. On July 2, the district attorney pursuant to § 1941 N.Y. Penal Law, McKinney's Consol. Laws, c. 40, and § 145 N.Y.Code Cr.Proc., filed a prior offense information charging the petitioner with a prior felony conviction, *fn3" and petitioner was subsequently arraigned on this information. On July 24, 1963 petitioner attempted by motion to withdraw his plea of guilty. This application was denied by the court, and defendant was sentenced to Sing Sing State Prison for a term of three and one-half to six years. Petitioner was represented by counsel throughout these proceedings and there is no allegation that he was not adequately represented or aprised of his rights.

 Following this sentence, petitioner moved by letter dated July 25, 1963 to vacate the sentence and for a new trial. This motion was denied on September 19, 1963. While this motion was pending before the trial court, petitioner filed a timely notice of appeal. *fn4" By April 27, 1964, petitioner had obtained a new attorney who moved for leave to appeal in forma pauperis and for an enlargement of time in which to perfect the appeal. *fn5" The Appellate Division granted these motions and defendant's time to perfect his appeal was enlarged to the October Term. Appellant's brief was received by the district attorney on September 18, 1964, and within a month respondent's brief was served on petitioner's counsel.

 The Appellate Division, 2d Dept., reversed the conviction by memorandum opinion dated November 23, 1964, stating that petitioner's motion to change his plea should have been granted and that failure to do so amounted to an abuse of discretion. (See People v. Williams, 22 A.D.2d 821, 254 N.Y.S.2d 858 (2d Dept.1964)). *fn6"

 On remand the trial court set aside defendant's guilty plea, fixed bail at $2,500, and placed the matter on the call calendar for January 25, 1965. On January 26, 1965, petitioner's motion to dismiss was denied and the case went to trial on February 23, 1965.

 Following a jury trial, petitioner was convicted of robbery, second degree; grand larceny, first degree; and assault, second degree. Petitioner was sentenced on March 30, 1965. (See 45 Misc.2d 1049, 258 N.Y.S.2d 666 (Supp.Ct. Queens 1965)). *fn7"

 Relator perfected his second appeal, alleging in essence the same contentions as are presented in this petition. The Appellate Division, 2d Dept., by memorandum decision dated December 12, 1966, affirmed the conviction stating that they "* * * [were] of the opinion that [relator] received a fair trial * * *." The court, however, noted that the sentence minutes revealed that the trial court had misconstrued its power to determine upon which count of the indictment it could sentence. The Appellate Division noted that under § 2188 N.Y. Penal Law, the trial court could have suspended sentence on the more serious counts of the indictment and sentenced petitioner on the lesser count, if it had been so inclined. For this reason, the case was remanded. (See 27 A.D.2d 549, 277 N.Y.S.2d 121 (2d Dept.1966)). Petitioner sought leave to appeal to the Court of Appeals, and leave was denied by that court on January 23, 1967 (Scileppi, J. presiding).

 On March 17, 1967, the trial court resentenced petitioner in compliance with the order of the Appellate Division, suspending the sentences on the two more serious counts and imposing a sentence on the assault count of from two and one-half to five years. *fn8"

 Petitioner appears to have exhausted available state remedies as is required under 28 U.S.C. § 2254 (1964); United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (2d Cir. 1963). Therefore, this court will consider the substance of the relator's allegations.

 THE DENIAL OF A SPEEDY TRIAL

 The petitioner claims that failure of the trial court to allow him to withdraw his previously entered guilty plea was the proximate cause of all future delays in expeditious trial of the charges against him. In support of his contention he relies on the rationale in United States v. Ewell, 383 U.S. 116, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966), and Klopfer v. State of North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). *fn9"

 In Klopfer v. State of North Carolina, supra, *fn10" the United States Supreme Court held that the right to a speedy trial, as guaranteed by the Sixth Amendment, is applicable to the states through the 14th ...


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