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UNITED STATES EX REL. MASSEY v. FOLLETTE

August 4, 1970

UNITED STATES of America ex rel. Arthur MASSEY, Petitioner,
v.
Hon. H.W. FOLLETTE, Warden, Green Haven State Prison, Stormville, New York, Respondent


Edelstein, District Judge.


The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge.

This application for a writ of habeas corpus *fn1" is predicated upon the circumstances surrounding petitioner's change of plea from not guilty to a charge of first degree rape *fn2" to a plea of guilty to second degree rape, *fn3" for which petitioner is currently serving a sentence of 8 to 10 years as a third felony offender. *fn4" Petitioner advances three contentions concerning his plea: (1) that second degree rape is not a crime charged in the indictment, and is not a crime included in or inferior to first degree rape, and that this violates his constitutional right to be charged by indictment; (2) that the Hon. Robert Dempsey of the Westchester County Court failed to comply with what petitioner characterizes as the "allocution requirements" of informing petitioner of his right to a jury trial when petitioner changed his plea; and (3) that Judge Dempsey was prejudiced against petitioner in not permitting petitioner's attorney to move to dismiss; "that the court should have permitted his attorney to make the motion to dismiss even if afterward denieing [sic] the motion." *fn5"

 POINT I

 Petitioner's contention that second degree rape is not included in first degree rape is a challenge appropriate to convictions resulting from a jury verdict, *fn6" and not to those resulting from a plea of guilty to a lesser offense, the latter of which is an "entirely different situation." *fn7" In fact, so different is this situation that the lesser crime for which the plea is accepted may well be based upon no objective state of facts -- that is, be entirely hypothetical in nature. *fn8" Furthermore, the New York Court of Appeals has expressly declared that the lesser crime for which the plea may be accepted "need not be a lower degree of the same crime, nor an included crime." *fn9" The sole determination is whether the plea here is to the type of lesser offense which, although not included in the crime charged, is authorized and permitted by the pertinent statutory provisions of the New York Code of Criminal Procedure -- viz., Sections 332(1), 334(2) and, in particular, 342-a. Section 342-a, in pertinent part, provides:

 
"In any case where the court * * * accepts a plea of guilty to a crime or offense of a lesser degree or for which a lesser punishment is prescribed than the crime or offense charged * * *" As amended, June 1966. (emphasis supplied)

 Rape in the second degree is most certainly the type of lesser offense contemplated by this language, not only because it is a lesser degree than that of the offense charged, but also because as a Class "D" felony the punishment prescribed is less than that for rape in the first degree, a Class "B" felony. *fn10"

 And, finally, the constitutionality of this procedure, sometimes referred to as "plea bargaining," is well-established, and not repugnant to any concepts of fundamental fairness. *fn11" Petitioner's first ground is without merit.

 by virtue of the failure of the court to "give him an option or an opportunity to exercise his right to a jury trial," when petitioner changed his plea. The transcript of the proceedings *fn12" reveals that questions concerning the factual basis for the voluntariness and consequences of pleading guilty were first posed by the District Attorney, and not by the court; subsequently the court addressed its questions to petitioner. All questions were asked and answers given in the presence of petitioner, his assigned counsel, the prosecuting attorney and Judge Dempsey, the last to whose discretion the plea was addressed. The comprehensive and thorough examinations by both the District Attorney and Judge Dempsey includes the following exchange between the District Attorney and Massey:

 
Mr. Francis Donohue: Do you realize that you are pleading guilty to a crime and felony?
 
The Defendant: Yes, Sir.
 
Mr. Francis Donohue: And do you realize that pleading guilty to a crime and felony is the same as if you had been tried before a Judge, a Jury and been found guilty after trial?
 
The Defendant: Yes.
 
* * * *fn13"

 Upon the close of his questioning, and after having indicated his reasons therefor, the District Attorney, in accordance with statute, *fn14" recommended that the court accept the plea. *fn15" The court, without having indicated either acceptance or rejection, then conducted its own careful examination of petitioner. Presumably satisfied that the District Attorney had elicited an intentional and knowing waiver of the defendant's right to a jury trial, *fn16" the court chose not to repeat that line of questioning -- did not "give an option" of a jury trial to petitioner. Instead, the court focused its attention on whether the plea was voluntarily given, after consultation with assigned counsel, and not as the result of promises or coercion. Only when fully satisfied that the plea was voluntarily and knowingly given, with defendant's awareness of his waiving thereby his right to a trial by jury, did Judge Dempsey accept it. Whatever may be the merits of Judge Dempsey's choosing not to repose questions to Massey concerning the waiver of a jury trial, this court finds that such procedure violated no rule, nor deprived petitioner of his right to a trial by jury. Petitioner's reference to the decision in McCarthy v. United States *fn17" mandating rigid adherence by the federal courts to Rule 11 of the Federal Rules of Criminal Procedure is not apposite here. *fn18" Aside from the fact that Rule 11 and its implementation is not binding on state courts, the New York Court of Appeals has expressly refrained from adopting either the language of that rule or one similar to it, preferring instead to proceed on a case by case basis. *fn19" In applying such broadly phrased standards to the instant facts, the fact that Massey was not here seeking to enter an initial plea, but rather was voluntarily seeking to change a plea of not guilty to the indictment is not without significance. It would not have been improper for the county court, in view of the opinion of the Court of Appeals, to have presumed that Massey realized that he was giving up his right to a trial by jury. This presumption need not even have been indulged in once Massey acknowledged to the District Attorney, in open court, that he realized his plea was tantamount to conviction "as if [he] had been tried before a Judge [and] a Jury. * * *" *fn20" This court agrees that Massey's change of plea was voluntarily given, with full awareness of and appreciation for the fact that by so pleading, Massey was committing "an intentional relinquishment or abandonment of a known right or privilege," *fn21" namely, the right to have the crime charged against him tried by a jury of his peers.

 POINT III

 Petitioner's final charge is that Judge Dempsey was prejudiced against him. This bald assertion is grounded upon the following exchange between the court and petitioner's assigned counsel:

 
The Court: I will remand the defendant for sentence.
 
Mr. James Donohue: If Your Honor pleases, at this time should I move to dismiss --?
 
The Court: No.
 
Mr. James Donohue: At the time of sentence?
 
The Court: Yes.
 
(The defendant was remanded) *fn22"
 
* * *

 Petitioner argues "[That] the Court should have permitted his attorney to make the motion to dismiss even if afterward denieing [sic] the motion."

 First, standing alone, the exchange is hardly a manifestation of bias by the Judge against either petitioner or petitioner's counsel. Second, when viewed against the court's examination of petitioner's desire to change his plea, the claim becomes altogether hollow. And finally, it would appear that Judge Dempsey was simply adhering to a routine procedure whereby the "remaining" counts of an indictment -- i.e., those to which a defendant has not pleaded guilty -- are "left open" until the date of sentence, at which time the court will then entertain a motion to dismiss the remaining counts. Although petitioner alleges that confusion on the date of sentence apparently resulted in the motion's not being made, such omission cannot be traced to any prejudice by Judge Dempsey. Petitioner's own statement to the effect that the motion could have been entertained and denied, tends, of itself, to subvert his claim of prejudice.

 In view of the foregoing, petitioner's application for a writ of habes [habeas] corpus is denied in all respects.

 So ordered.

 APPENDIX

 County Court: Westchester County

  x

 The People of the State of New York,

 -against-

 Arthur Massey,

 CHANGE OF ...


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