The opinion of the court was delivered by: COOPER
Petitioner applies for a writ of habeas corpus alleging that his guilty plea to second degree murder entered June 8, 1955 in County Court, Bronx County, was involuntary because it was induced by the promise of the Bronx County District Attorney to withdraw then pending and related indictments for kidnapping and robbery. Petitioner is presently confined in Green Haven Prison serving a sentence of thirty years to life, as commuted, on this judgment.
In a previous motion heard in Supreme Court, Bronx County, on October 20, 1965, petitioner urged vacation of his guilty plea on the ground that his counsel, then deceased, had informed him that the Bronx District Attorney had promised that petitioner would receive a sentence of twenty years to life if he pleaded guilty to murder in the second degree. Neither petitioner nor any of the witnesses at that hearing even in the remotest sense suggested that petitioner had been promised dismissal of the other two indictments as an inducement to his guilty plea. After a full evidentiary inquiry the hearing justice held that no promise had been made as alleged by petitioner.
Having failed in that attempt petitioner asserted in the state courts by way of coram nobis the instant allegations of promissory inducement. The hearing justice granted the Assistant District Attorney's motion to dismiss the kidnapping and robbery indictments (which were apparently no longer viable under § 668 of the New York Code of Criminal Procedure) and by order dated November 1, 1967 denied petitioner's application on the ground that even if a promise had been made it had never been broken and was now formally fulfilled.
Petitioner's belated assertion of this alleged inducing promise first made more than eleven years after his guilty plea, combined with a prior unsuccessful assertion of inducement by a different alleged promise in which petitioner did not even intimate the existence of the promise now put forward, certainly at the very least "casts doubt upon the veracity of the present allegations." See United States ex rel. McGrath v. LaVallee, 348 F.2d 373, 377 (2d Cir. 1965); United States ex rel. Mitchell v. McKendrick, 290 F. Supp. 661 (S.D.N.Y.1968). Moreover, the record of petitioner's guilty plea affords no support to his claim. Only at the time of sentence is there an indication by defense counsel that the prosecutor had at some time indicated he would seek to "dispose" of the indictments then outstanding - a routine procedure. There is absolutely nothing to indicate that this took the form of a promise prior to petitioner's guilty plea.
Even assuming the existence of such a promise as alleged it was not of such a nature that would deprive petitioner's guilty plea "of the character of a voluntary act." Machibroda v. United States, 368 U.S. 487, 493, 82 S. Ct. 510, 513, 7 L. Ed. 2d 473 (1962). See Kercheval v. United States, 274 U.S. 220, 223, 47 S. Ct. 582, 71 L. Ed. 1009 (1927). The promise here claimed was not for leniency of sentence. Compare, e.g., Machibroda v. United States, supra ; United States ex rel. McGrath v. LaVallee, supra ; United States ex rel. Thurmond v. Mancusi, 275 F. Supp. 508, 515-519 (E.D.N.Y. 1967); United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244 (S.D.N.Y. 1966). Petitioner, with the advice of competent counsel, pled guilty to an offense less than each of those with which he was charged. There is nothing to indicate he did not make a "reasoned choice."
Further, even as alleged by petitioner, this is not an instance of bad faith or broken promises by the prosecutor. See United States v. Miss Smart Frocks, Inc., 279 F. Supp. 295, 299 (S.D.N.Y. 1968). Petitioner's plea was to a lesser offense and the other indictments were in fact never pressed against him.
Accordingly, an evidentiary hearing is not required here and petitioner's application for a writ of ...