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June 10, 1975

HON. VINCENT R. MANCUSI, Superintendent, Attica Correctional Facility, Respondent

The opinion of the court was delivered by: DUFFY


 Petitioner Fred Edwin Johnson was sentenced to consecutive prison terms of one year and one-and-one/half to three years on June 22, 1966, following his plea of guilty on May 16, 1966 to two gambling-related, state criminal charges. He brought the present habeas corpus action while confined in New York State's Attica Correctional Facility, serving the second of those terms. Although subsequently released, *fn1" he has continued this suit, charging that his plea of guilty was involuntarily entered and should be set aside, and that he was denied effective assistance of counsel both when he changed his plea from not guilty to guilty, and also at sentencing when he sought to withdraw his guilty plea.

 Johnson was indicted along with Frank Shepperson and Robert Royals, on one misdemeanor charge of conspiring to bribe public officers, operate a "policy" business, and assist in an illegal lottery, and on seven felony counts relating to their participation in the policy business or "numbers game". Shepperson and Royals retained Nathan Kestenbaum, Esq. to represent them. At Kestenbaum's suggestion, Johnson, who had discharged his first lawyer, retained Morris Levy, Esq. Levy, however, deferred almost entirely to Kestenbaum in this case.

 On May 16, 1966, when the defendants and their lawyers were scheduled to appear before Judge Gellinoff of the New York Supreme Court, Kestenbaum and Levy met with Johnson at the "bullpen" at the courthouse. At that time, Johnson was serving a sixty-day sentence on unrelated state charges and had not seen Shepperson or Royals, or the two lawyers, for two or more weeks. Kestenbaum surprised Johnson by telling him that Shepperson and Royals had agreed to plead guilty, and he urged Johnson to do likewise. Kestenbaum told Johnson that the State had a very strong case *fn2" and would "waste" or "bury" him if he went to trial. Johnson also had a number of gambling convictions in his record, *fn3" which could have possibly been brought out if he testified. Moreover, he apparently had no satisfactory explanation for some of the meetings charged.

 What else Kestenbaum said has been the subject of substantial dispute. According to Kestenbaum's testimony, *fn4" he told Johnson that in his opinion Johnson would be sentenced to no more than several months if he pleaded guilty, as opposed to a possible eleven years if he stood trial and were convicted on all counts, as Kestenbaum thought likely. Kestenbaum testified that he told Johnson that he knew Judge Gellinoff; that he had had a dinner with the Judge during which they discussed the Judge's sentencing philosophy generally; that he thought the Judge was a mild person (recalling one or two cases where the Judge had imposed markedly mild sentences). Johnson, on the other hand, claims that Kestenbaum told him that he had a guarantee or promise from the Judge that Johnson would get only six months if he pleaded guilty.

 Johnson resisted pleading guilty, protesting his innocence. The case was called and Kestenbaum secured a fifteen-minute adjournment in order to continue talking to Johnson. Johnson claims that he wanted to talk to Shepperson or Royals, but was unable to. Finally, he says, he agreed to plead guilty because of Kestenbaum's representation that the government would "waste" or "bury" him if he went to trial and because Kestenbaum allegedly had a guarantee from the Judge of a six-month sentence.

 The transcript from the hearing at which Judge Gellinoff accepted the defendants' guilty pleas that same day shows that Judge Gellinoff spelled out the charges to which the defendants were pleading, noting that one was a misdemeanor and one a felony. The defendants admitted having committed the acts charged and stated that they were pleading guilty voluntarily. Judge Gellinoff asked whether any promise had been made to them by anyone as to the sentence the court might impose, to which they replied "no". The defendants, prior to pleading guilty, were also advised that, under the law, a person charged with a felony may receive greater or different punishment if he has been previously convicted of another felony. Thus, if it were discovered that one of the defendants had been convicted of a prior felony, *fn5" this could affect his sentence. Sentencing was set for June 20, 1966. The Judge said that he wanted to sentence them soon, but that he wanted an "adequate time to make as good an investigation as I can -- to do the best I can."

 Johnson, having completed serving the sixty-day sentence, was released on June 17th, and saw Kestenbaum again for the first time at the courthouse on June 20th. Johnson has testified that he had been thinking about the alleged guarantee or assurance of the six-month sentence and really doubted that the Judge had made such a promise. He said that on June 20th "(I) continued to disagree with (Kestenbaum) as to his belief of the promise that I might be able to get the six months, and I wanted him to make an application to the court to withdraw my plea." *fn6" Kestenbaum testified that, as best as he could recall, the defendants that day asked if everything had been arranged, to which he replied that there was no arrangement. He said "I kept repeating for quite sometime prior to this and on the day of sentence that I expected the sentence to be several months." Kestenbaum testified that Shepperson and Johnson responded that they had assumed they were assured of a sentence of only several months and said they wanted their pleas withdrawn. *fn7"

 Johnson claims that he insisted that Kestenbaum move to withdraw his plea on the grounds that no one had come to him in jail prior to May 16th to tell him what he had pleaded to; that he had not understood what he was pleading guilty to; that now he understood that it was a misdemeanor and a felony; and that he felt he was innocent and wanted to withdraw his plea. *fn8"

 Kestenbaum cautioned against this, and when called before the court on June 20th, he simply asked the court for a two-day extension. On June 22nd, when the court asked whether the defendants had any legal or other cause to show why judgment should not be pronounced against them, Kestenbaum moved on behalf of Johnson and Shepperson to withdraw their pleas. (Levy was not present at sentencing; Johnson consented to have Kestenbaum represent him.) Kestenbaum told the court that the defendants now thought that their pleas were "ill-advised" and that the state had insufficient evidence to convict them. The court, after detailing the interrogation it had conducted before accepting the defendants' pleas, denied the motion. After further argument by Kestenbaum (directed to sentencing) that defendants should not be penalized for their failure to cooperate with the police, and after the prosecutor summarized the scope of defendants' activities and the strong evidence the state had against them, the court imposed sentence. The court never addressed Johnson personally prior to either the denial of the motion or the imposition of sentence. Johnson claimed on direct examination before Judge Carney that just before sentencing he tried to speak to the court and present all his reasons for wanting to withdraw his plea, but that a court officer put his hand over Johnson's mouth and told him to be silent. It is significant, however, that on cross-examination Johnson testified that this episode occurred just prior to his entering the plea of guilty.

 The instant petition follows Johnson's unsuccessful direct appeal *fn9" and two coram nobis petitions, all joined in by Shepperson and Royals. In the initial coram nobis petition defendants stated in an affidavit that their pleas were involuntary because they had relied on Kestenbaum's ultimately incorrect estimate of what their sentences would be. They stated that they had expected to be sentenced to several months on the misdemeanor and to receive suspended sentences on the felony. In an affidavit supporting their petition, Kestenbaum (who did not represent them in this proceeding), stated that he had erred in his estimate of the sentence. Kestenbaum also charged that by imposing consecutive sentences the court was improperly trying to induce defendants to cooperate with the police in an effort against gambling and police corruption, in order to have their felony sentences suspended. Judge Gellinoff denied this petition without a hearing on May 18, 1967.

 In the second coram nobis petition, brought in October 1967, the defendants alleged that they had been induced to plead guilty not by defense counsel's faulty estimate, but by his representation that the judge had promised a sentence of not more than six months. *fn10" Judge Gellinoff disqualified himself, ordered a hearing, and the case was transferred to Judge Carney. Judge Carney held a four-day hearing in late November and early December, 1967. At the hearing defendants were represented by counsel, Raymond A. Brown, Esq. Aaron Jaffe, Esq., the attorney who had drawn up the initial coram nobis petition, was also present. Johnson, Shepperson and Royals all testified, as did Raymond Shepperson (the defendant's brother), Kestenbaum and Judge Gellinoff. It was stipulated by both the state and the defendant that in fact there had been no promise made nor assurance given by Judge Gellinoff of a six-month sentence. Of his contact with Kestenbaum, Judge Gellinoff said they had met at a dinner party prior to the time this case was assigned to his calendar; that Kestenbaum had invited him to a cocktail party at his home that was held sometime after sentencing; and that he spoke to Kestenbaum once at the bench between the acceptance of the plea and the sentencing, at which time he asked directions to Kestenbaum's home. He said that he and Kestenbaum had spoken about the case only once, and that the prosecutor had been present at the meeting. All had agreed that defendants would be treated as first felony offenders. Judge Carney, in denying the petition in an opinion filed February 15, 1968, found that:

"The defendants pleaded guilty, not because they were coerced into doing so, or did so involuntarily, but because Mr. Kestenbaum had convinced them that the People had a strong case and because they felt they could safely gamble on his alleged friendship with the judge and his estimate of a sentence of not exceeding six months which they assumed to be a promise. When they found out around sentencing time that the proposed sentence was not an actual promise of the Judge as they had assumed, but only an estimate by the lawyer, then they decided to withdraw their plea if possible.
"All three of these defendants are men in their adult years with criminal records. They knowingly entered their pleas of guilty after a full statement of the facts by the district attorney and a full and complete interrogation of each defendant by the court. Nothing that occurred during this proceeding cast doubt upon their guilt of the crimes to which they were pleading guilty. The pleading proceeding complied in all respects ...

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