Moore, Hays and Feinberg, Circuit Judges. Feinberg, Circuit Judge (concurring).
The State of New York (the State) (representing Hon. Harry Fritz, respondent-appellant), appeals from an order of the United States District Court for the Eastern District of New York, granting a writ of habeas corpus and setting aside the conviction in the Nassau County Court of Fred LaFay, the petitioner-appellee (LaFay). The conviction was based upon LaFay's plea of guilty to the crimes of burglary in the third degree and attempted grand larceny in the second degree. LaFay was sentenced (May 2, 1967) as a second felony offender to concurrent terms of 10 to 20 years (the burglary) and 2 1/2 to 5 years (the attempted grand larceny). LaFay's petition was premised upon his allegation (as stated in his Brief to this court) that "he pleaded guilty as a consequence of a promise by the Court (the late Mr. Justice Kolbrener), or in the alternative upon his good faith belief that a promise existed that he would be sentenced on the Attempted Grand Larceny charge, which carried a maximum of five years' imprisonment. This promise was conveyed to him by his attorney, Sidney Sparrow, Esq." Since there was no proof whatsoever of any promise by the Court, LaFay must rest upon the alternative ground that "his good faith belief that a promise existed that he would be sentenced on the Attempted Grand Larceny charge" caused his guilty plea to become involuntary when his expectations were not realized.
The State Court Proceedings
On September 15, 1965 LaFay and another were arrested in Queens County. Subsequently thereto LaFay and his codefendant were indicted in Nassau County for Burglary in the third degree, Grand Larceny in the first degree and possession of burglar's tools. LaFay and his co-defendant were represented by skilled and experienced counsel, Sidney G. Sparrow.
On January 12, 1967 LaFay and the co-defendant with their counsel and an assistant district attorney appeared before the Hon. Martin Kolbrener in the Nassau County Court at which time Mr. Sparrow represented to the Court that as a result of conferences with Court, District Attorney and counsel for the defendants and after advising "them [the clients] of all the circumstances surrounding these conferences," the defendants asked leave to withdraw their not-guilty pleas in all three indictments against them and plead guilty to burglary in the third degree and attempted grand larceny in the second degree in full satisfaction of all counts in the three indictments. The District Attorney stated that "no promises or representations have been made by the District Attorney with respect to sentence or punishment in connection with the inducement of this plea." The Court then asked Mr. Sparrow for his position whereupon Mr. Sparrow said:
"I will state for the record, and I want my clients both to hear this as I say it: There has [sic] been no promises made by the District Attorney as to what the sentence may be in this case by reason of the fact that a lesser plea has been entered here, and I might tell you that there has been no promise on sentence from the Court, too. You know this, do you not, each of you?"*fn1
To which both defendants responded in the affirmative.
The Court then pursued the matter further, inquired into the educational background of each defendant and addressed them as follows:
"The Court: You are going to be asked to plead guilty to two crimes, both of them felonies. I can sentence you on each of them to jail or on both of them concurrently or consecutively. Do you understand what that means? One following the other. I don't know until I see the probation report.
Has anybody given you any idea of what my sentence will be?"
More specifically, the Court addressed LaFay:
"The Court: Nobody made you any promises?
"Defendant LaFay: No, sir.
"The Court: You are not being forced into this?
"Defendant LaFay: No, sir."
The Clerk then advised them in open court pursuant to the Court's direction that "if you have any prior convictions that may be proved and used against you, you may be liable to additional and increased punishment." Both defendants then withdrew their pleas of not guilty and pleaded guilty to burglary in the third degree and attempted grand larceny, second degree (Minutes of Change of Plea, January 12, 1967, Appx. 33-36).
Sentence originally scheduled for February 24, 1967 was accelerated to February 8th. The Court had allowed LaFay to remain out on bail. LaFay failed to appear and forfeited ("jumped") his bail. He was reapprehended shortly thereafter, having been charged with committing another robbery in the meantime. Sentence was rescheduled for April 27th at which time the Clerk read two previous felony convictions against LaFay. Counsel for LaFay, an associate of Mr. Sparrow, requested the withdrawal of the guilty plea and a 48 hour adjournment. Finally, on May 2, 1967 Mr. Sparrow stated to the Court that LaFay claimed that his guilty plea "was induced by either misstatements or misconceptions on his part, as to the possibilities of a sentence under the type of plea that he was taking" and that these possibilities "were not stated to him properly and adequately;" that a mandatory sentence on the burglary plea of 5 to 20 years "was not what he [LaFay] understood at the time he took the plea." LaFay again through counsel "insisted that this is not a plea which was voluntarily given, but was one that was coerced and induced by reason of improper conversation with his counsel." Counsel further advised the Court as to his reasons for pleading to the attempted grand larceny charge, saying that in his opinion it would give the Court "additional leeway below [burglary, 5 to 20 years] in the event the Court saw itself inclined to give a jail sentence on the lesser one and possibly suspend on the higher one. I discussed this in some detail with the defendant, not giving any promises, but indicating that this was a fashion in which a Court could impose sentence. The defendant has, chosen to indicate to me that he took this to be a promise, which of course, it was not."
The Court then sentenced LaFay as a second felony offender to 10 to 20 years on the burglary charge and 2 1/2 to 5 years on ...