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UNITED STATES EX REL. ANOLIK v. COMMISSIONER OF CO

April 21, 1975

UNITED STATES of America ex rel. Irving ANOLIK, on behalf of Sheldon Selikoff, Petitioner-Relator,
v.
COMMISSIONER OF CORRECTION OF the STATE OF NEW YORK, Respondent


Bonsal, District Judge.


The opinion of the court was delivered by: BONSAL

BONSAL, District Judge.

Petitioner, Sheldon Selikoff, presently in a New York correctional institution, seeks a writ of habeas corpus pursuant to Section 2254 of Title 28 of the United States Code on the ground that the trial judge refused to fulfill his "unconditional promise," made to petitioner on the record at the time petitioner pled guilty, that no incarceration would be imposed.

 Facts

 On May 12, 1972, four days after the commencment of the trial of petitioner and several co-defendants on one of three indictments arising out of a complicated alleged real estate "swindle," petitioner pled guilty to one count of grand larceny in the second degree in full satisfaction of the 38 counts with which he had been charged. At the same time, petitioner also pled guilty to one count of obscenity in the second degree in satisfaction of eight counts in a fourth indictment charging sexual improprieties. Petitioner pled guilty before Judge George D. Burchell in the Westchester County Court. Judge Burchell thereafter continued to preside over the trial of petitioner's co-defendants.

 At the time of petitioner's guilty plea, the following colloquy occurred among Judge Burchell, Mr. West (the prosecutor) and petitioner as to petitioner's plea on the larceny indictments:

 
"Mr. West: Have any promises been made to you sir by the Westchester County District Attorney's Office?
 
"The Court: At this point Mr. West I would like to place on the record, Sheldon Selikoff, I have had a number of conferences with your attorney and with representatives of the District Attorney's Office with regard to the cases against you. Based upon the results of the conferences and conversations and the fact and representation made to the court, I indicated to the attorney and I am now indicating to you that in my opinion in the interest of justice that no incarceration of you is required and based upon this plea as to what other sentence I shall impose, I do not know and I make no promises. Do you understand that?
 
"Sheldon Selikoff: Yes sir.
 
"Mr. West: Now sir, have there been any other promises made to you by the Westchester County District Attorney's office?
 
"Sheldon Selikoff: No sir.
 
"Mr. West: Have there been any promises made to you by [your lawyer]?
 
"Sheldon Selikoff: No sir.
 
"Mr. West: Have you been promised anything by the Probation Department of this County?
 
"Sheldon Selikoff: No sir."

 Thereafter, the following colloquy took place in connection with the guilty plea to ...


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