The opinion of the court was delivered by: BRYAN
FREDERICK van PELT BRYAN, District Judge:
Robert S. Mosher, now petitioning this Court for a writ of habeas corpus, is presently serving a 40 to 60-year sentence of imprisonment imposed by the County Court of Westchester County, New York, on July 9, 1964.
Mosher was sentenced as a second felony offender on a plea of guilty to a count of armed robbery in the first degree.
Mosher urges that his plea of guilty was involuntary and both plea and sentence must be set aside. He makes two alternative contentions.
Mosher's first claim is that the County Court Judge, prior to accepting his guilty plea, promised that, if he pled guilty, he would receive a minimum sentence; he was induced by this promise to plead guilty instead of standing trial; but, that the promise was broken when the judge gave him what was tantamount to a maximum sentence.
Alternatively, Mosher claims that even if the judge did not make such a promise, his attorney assured him that the judge had promised to give him a minimum sentence if he pled guilty and that he was induced to plead guilty by such assurance, which turned out to be untrue.
Mosher's conviction and sentence were affirmed, People v. Mosher, 29 A.D.2d 549, 286 N.Y.S.2d 791 (2d Dep't, 1967), and leave to appeal to the New York Court of Appeals was denied on March 27, 1968. On July 25, 1968, Mosher brought a coram nobis proceeding in the County Court of Westchester County which raised substantially the same issues as are presented here. The County Court denied the petition without a hearing. The Appellate Division affirmed and the Court of Appeals again denied leave to appeal.
Mosher then brought the instant proceeding. In substance, the same papers were submitted on this application as had been presented to the Westchester County Court on his coram nobis application. Since there were issues of fact raised by these papers, I held an evidentiary hearing.
At the hearing, James T. Morahan, Esq., the attorney retained by Mosher's family to represent him in the case in which he pled guilty, Mosher himself, his co-defendants Bracken and Reid, Philip Parker, Esq., Bracken's attorney, and Hon. Robert J. Trainor, Justice of the New York Supreme Court, formerly Westchester County Court Judge, all testified.
The evidence before me was as follows:
Mosher and his co-defendants, Bracken and Reid, were arrested in March, 1964, for the armed robbery of the United States Post Office at Mary Knoll Seminary in Ossining, New York. Not unnaturally, the case received wide publicity.
Mosher and his co-defendants were indicted on four counts, charging (1) robbery in the first degree, (2) grand larceny, (3) second degree assault, and (4) felonious carrying of concealed, loaded firearms. All defendants initially pleaded not guilty to all counts.
On June 17, 1964, Mosher appeared before Judge Trainor and stated through counsel he wished to plead guilty to armed robbery in the first degree. Judge Trainor, in open court, asked Mosher whether any threats or promises had been made to induce him to change his plea and Mosher answered in the negative. Judge Trainor accepted the plea. His co-defendants Bracken and Reid also pled guilty to that count.
On July 9, 1964 Mosher appeared before Judge Trainor for sentence. He had previously served five years of a 10-year term on a prior conviction of armed robbery and was thus a second felony offender. Under the New York law in effect in 1964, the maximum sentence which Mosher could have received as a second felony offender on his guilty plea to armed robbery in the first degree was 60 years. Former N.Y.Penal Law, McKinney's Consol.Laws, c. 40, §§ 2125, 1941.
The minimum sentence which could have been imposed was 15 years. Id. Judge Trainor sentenced Mosher to not less than 40 nor more than 60 years, as a second felony offender. A few days after Judge Trainor sentenced Mosher, he sentenced Mosher's co-defendant Reid to 10 to 20 years, and his co-defendant Bracken to a reformatory term not to exceed 5 years.
On the morning of the day on which Mosher and his co-defendants changed their pleas, Morahan, Mosher's attorney, the Assistant District Attorney in charge of the case, the District Attorney and the attorney for the co-defendant Reid, met with Judge Trainor in his chambers. Subsequent to that meeting, Morahan and the attorneys for the other two defendants met with their clients in the detention area of the Westchester County Courthouse to discuss the plea. Mosher's contentions that his plea was involuntary are based on what occurred in these two meetings. The evidence as to what occurred must be discussed in some detail.
The meeting in Judge Trainor's chambers took place some eight years ago and the testimony as to precisely what was said is, not unnaturally, by no means clear.
According to Morahan, he continued his prior attempts to bargain with the prosecutor for a lesser plea than robbery in the first degree but was wholly unsuccessful. The prosecutor was willing to accept only a plea to the armed robbery count to cover all four counts of the indictment and nothing less. How much Judge Trainor participated in that discussion is not clear. However, Morahan testified that during the course of the meeting, Judge Trainor made a remark to the effect that "I don't think in maximums" and at the conclusion told the two defense attorneys to discuss with their clients the plea offer.
Judge Trainor, on the other hand, testified that it had been his consistent practice not to give any assurances to counsel with respect to possible sentence and that he had never done so. He recalled the Mosher case and specifically denied that he had made any promise or commitment to Morahan with respect to Mosher's sentence, or authorized anyone to do so.
He also flatly denied saying to Morahan that he would not think in terms of maximums or using any language to that effect.
None of the other persons present at the meeting in chambers were called to testify by either side, apparently because none of them had any recollection of what had occurred there eight years before.
After analyzing the testimony at the hearing and evaluating the credibility of the witnesses, I find that no promise of any kind as to Mosher's sentence was made by Judge Trainor to Mosher's attorney or to anyone else prior to the change of plea or at any other time.
I further find that nothing was said at the meeting in chambers or elsewhere which could reasonably be construed as a commitment not to impose a maximum sentence, to impose a lenient sentence or, even less, to impose a minimum sentence. Thus the "impression" which Morahan said he received at the meeting in chambers that any such promise or commitment had been made was wholly unjustified and without foundation.
On his first contention, Mosher had the burden of showing that a promise as to sentence was made by the Judge. E.g., United States ex rel. Carter v. LaVallee, 441 F.2d 620 (2d Cir. 1971). He wholly failed to sustain that burden here. Thus, the cases holding that a guilty plea induced by a broken promise as to sentence by the judge or prosecutor, is subject to being set aside as involuntary, Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); Smith v. United States, 321 F.2d 954 (9th Cir. 1963); United States ex rel. McGrath v. LaVallee, 319 F.2d 308 (2d Cir. 1963); United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244 (S.D.N.Y.1966), do not apply.
There is no merit to Mosher's first contention and he is not entitled to ...