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PERRY v. VINCENT

October 14, 1976

THOMAS PERRY, Petitioner,
v.
LEON VINCENT, Superintendent Greenhaven Correctional Facility, Respondent



The opinion of the court was delivered by: PLATT

PLATT, D.J.

 By petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241, Thomas Perry challenges the New York Courts' refusal to permit him to withdraw his plea of guilty to attempted possession of a weapon.

 FACTS

 On October 1, 1971 at 1:30 A.M. Patrolman Manuel Garcia was cruising in his police car at Kennedy Airport. As he approached the taxi line at the Northwest Airlines Terminal building, he saw three men arguing in front of the first taxi in line. When the patrolman stopped his car, one of the men, later identified as petitioner Thomas Perry, got into his car and drove away. The remaining drivers told Patrolman Garcia that Perry had threatened them with a gun.

 Patrolman Garcia chased Perry's car and ordered him to stop on the Van Wyck Expressway. Garcia noticed Perry bending over in the front seat toward his right side. Perry stopped his car and stepped out.

 Patrolman Garcia questioned Perry about the information supplied by the other taxi drivers. Perry denied threatening anyone or possessing a gun. However, after frisking him, Garcia reached under the front seat of Perry's car and found a loaded.32 caliber revolver.

 Petitioner sought to suppress the gun seized by Patrolman Garcia. However, the Supreme Court, Queens County (Leahy, J.) ruled that there was probable cause for the search and seizure, and accordingly denied the motion.

 An examination of the record *fn1" shows that petitioner subsequently made two attempts to plead guilty. At the conclusion of the first attempt the State Court rejected his plea in that petitioner's claims with respect to the facts indicated that he might be innocent of the charges, and the Court set the matter down for trial. On the date set for trial the petitioner admitted facts showing his guilt, and the Court accepted his plea. During the course of the exchanges between the petitioner and the Court in both proceedings, the Court in its effort to be certain that petitioner's plea was completely voluntary, repeatedly told petitioner that he alone (and not his lawyer) could plead guilty, that the Court would not accept a guilty plea from an innocent man, that if he was innocent he could go to trial, and that if he was found guilty he might be sentenced to four years in jail. The Court asked him several times whether any promises had been made to him, receiving in each instance a negative reply.

 Petitioner was later sentenced to the maximum term of four years. Evidently disappointed with his sentence, petitioner immediately sought to withdraw his guilty plea. This application was denied by the New York Courts.

 Petitioner now asks this Court to intervene and permit him to withdraw his guilty plea and order his criminal record expunged. Two arguments are advanced. First, petitioner contends that the state courts erred in not granting his motion to suppress the gun. Second, he argues that his guilty plea was constitutionally infirm under Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969).

 I

 Petitioner has exhausted his State remedies. 28 U.S.C. § 2254(b). His judgment of conviction was unanimously affirmed without opinion by the Appellate Division, Second Department on February 25, 1974. An application for leave to appeal to the New York Court of Appeals was denied on April 17, 1974. The issues raised in the instant petition were argued in petitioner's appellate briefs to the State courts.

 II

 Subsequent to the filing of this action, petitioner was unconditionally released from jail. However, since this Court took jurisdiction while petitioner was in custody, the controversy is not moot. Carafas v. LaVallee, ...


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