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June 23, 1977.

Leonard FAMBO, Petitioner,
Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent.

The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

Petitioner Leonard Fambo has applied to this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was indicted, along with two others, in the Onondaga County Court in April 1971, for two violations of former § 265.05(7) of the New York Penal Law. Former § 265.05(7) (now recodified as § 265.04) provided that "any person who has in his possession any explosive substance with intent to use the same unlawfully against the person or property of another... is guilty of a class B felony" (McKinney's 1967). The first count of the indictment charged the petitioner with possession of an explosive substance on November 29, 1970. The second count charged him with an identical violation on December 1, 1970.

 At his arraignment in May 1971, petitioner entered a plea of not guilty to the crimes charged in the indictment. However, on October 27, 1972, following a conference among the petitioner, his attorney, the Onondaga County Assistant District Attorney, and the Hon. Ormond N. Gale, Onondaga County Court Judge, petitioner entered a plea of guilty for possession of an incendiary device in violation of former § 265.05(1) of the Penal Law, in satisfaction of both original charges. Former § 265.05(1) [now recodified as § 265.02(2)] provided that "any person who has in his possession any explosive or incendiary bomb... is guilty of a class D felony" (McKinney's 1967). Judge Gale accepted the guilty plea and petitioner was subsequently sentenced on December 27, 1972 to an indeterminate term of imprisonment, the maximum of which was to be five years. Petitioner is currently on parole under the supervision of the New York State Department of Correctional Services.

 Petitioner did not appeal his conviction. He exhausted his state post-conviction remedies subsequent to filing his petition for relief in this court. Petitioner's motion to set aside his guilty plea, pursuant to New York's Criminal Procedure Law § 440.10, was denied by Judge Gale on March 10, 1976. Leave to appeal that order was denied on April 6, 1976 by Associate Justice Walter J. Mahoney, Supreme Court, Appellate Division, Fourth Department.

 Petitioner asserts that he has been deprived of his liberty in violation of the fourth, sixth, eighth and fourteenth amendments to the United States Constitution. He presents certain facts which allegedly were unknown to him at the time he pleaded guilty, and of which he did not learn until March 27, 1974, in an unrelated trial before this court in which petitioner was a defendant and in which he was acquitted on all counts. See United States of America v. Bufalino, CR-1973-175 (W.D.N.Y.1974). Specifically, petitioner alleges that during the course of the Bufalino trial, a member of the Onondaga County Sheriff's Department, Sergeant David A. Stevenson, testified that, on November 29, 1970, a tube of dynamite was found in a field in Onondaga County; that the contents of the tube were removed and destroyed and that the tube was repacked with sawdust and returned on December 1, 1970 to the place where it had been discovered. See United States v. Bufalino, supra, Testimony of David Stevenson, 3/27/74, Trial Transcript at 55, 56, 61. Petitioner asserts that this tube of dynamite is the exact same explosive substance and/or incendiary device for which he was charged with criminal possession. Respondent's memorandum of law concedes the truth of this allegation. See Respondent's Memorandum of Law at 4.

 Petitioner argues further that his plea of guilty was entered without knowledge of this apparently exculpatory evidence and that his plea of guilty therefore does not meet the constitutional requirement that the plea be voluntarily, intelligently and knowingly entered. See Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962). Petitioner alleges that the Assistant District Attorney of Onondaga County failed to disclose this exculpatory information to anyone at the time of the plea, and that he represented to the petitioner at that time that his office did in fact have the dynamite on which the two counts in the indictment were based. Petitioner and his trial counsel, Mr. Salten Rodenberg, have asserted that the guilty plea was produced directly as a result of the prosecutor's failure to disclose the fact that the district attorney's office did not have the dynamite which petitioner had originally been charged with possessing and which had been destroyed prior to petitioner's arrest, and the concomitant failure to disclose the fact that the substance possessed on the date charged in the second count of the indictment was merely sawdust.

 Respondent disputes these claims by petitioner and contends that the prosecutor had no duty in this case to disclose this evidence prior to or during the course of plea bargaining.

 Finally, petitioner claims that the facts of this case are logically inconsistent with the valid establishment of factual guilt and that he was convicted, sentenced and is, in effect, presently being deprived of his liberty merely for possession of sawdust.

 Prior to accepting the petitioner's guilty plea, the trial judge questioned petitioner under oath. Petitioner testified that he was aware that the maximum possible sentence for the D felony of possession of an incendiary device was seven years in prison, and that on the recommendation of the District Attorney the sentence imposed, based upon his conviction following his guilty plea, would not exceed five years. Petitioner indicated on the record that he understood that the guilty plea would constitute a waiver of his right to a trial by jury. He also acknowledged that he had conferred at length with his counsel prior to the plea proceedings. See People of the State of New York v. Leonard Fambo, Ind. No. 71-142, Transcript of Plea Proceeding (10/27/72) at 1-3.

 The trial court did not explore on the record the proof of the crimes charged that was available to the District Attorney, nor did the court establish a factual basis for the guilty plea since such was not required by New York State law. [See People v. Griffin, 7 N.Y.2d 511, 199 N.Y.S.2d 674, 166 N.E.2d 684 (1960); People v. Clairborne, 29 N.Y.2d 950, 329 N.Y.S.2d 580, 280 N.E.2d 366 (1972). Cf. Federal Rules of Criminal Procedure, Rule 11.] *fn1" Nor did the trial court make an on-the-record attempt to satisfy itself that the defendant understood the nature of the charges or that the defendant was aware of the acts sufficient to constitute the offenses for which he was charged [see Boykin v. Alabama, 395 U.S. 238, 244, n. 7, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)], other than to assure itself that petitioner had conferred at length with counsel on this matter. None of these matters were explored further at the sentencing proceeding.

 On the record of the plea and sentencing proceedings alone, it would appear that petitioner's decision to plead guilty was a willing and voluntary choice made by petitioner from among alternative courses of action. Petitioner was represented throughout the proceedings by competent counsel. The record contains no evidence of coercion. Petitioner knew what his maximum punishment might be and he indicated that he was aware that he was waiving his right to a trial by jury.

 In light of these facts the principal question yet to be resolved is whether or not the District Attorney's failure to disclose to petitioner that the damaging evidence (i.e., the dynamite) had previously been destroyed renders petitioner's subsequent guilty plea constitutionally invalid under the standards which require that a guilty plea be entered in a voluntary, knowing and intelligent manner. See Machibroda v. United States, supra; Boykin v. Alabama, supra, 395 U.S. at 242-44, 89 S. Ct. 1709 (1969); Saddler v. United States, 531 F.2d 83 (2d Cir. 1976); Ferguson v. United States, 513 F.2d 1011 (2d Cir. 1975); Irizarry v. United States, 508 F.2d 960 (2d Cir. 1974); United States ex rel. Curtis v. Zelker, 466 F.2d 1092 (2d Cir. 1972); United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970).

 Before exploring the relationship between the District Attorney's failure to disclose important evidence and the validity of petitioner's guilty plea, it is appropriate initially to address the question of whether petitioner's guilty plea to the felony charge entered in Onondaga County Court in 1972 now precludes him from raising his constitutional claims in this federal habeas corpus proceeding. In a series of cases beginning with Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970), the United States Supreme Court has recognized that by pleading guilty the defendant waives the right to later assert that certain constitutional or factual infirmities which existed in his case prior to his plea now require that the conviction be overturned. See also McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970); Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973).

 More recently, the Supreme Court has offered some guidance as to when it is appropriate to apply the rulings of these cases:

 Neither Tollett v. Henderson, [citations omitted], nor our earlier cases on which it relied, e.g., Brady v. United States [citations omitted], and McMann v. Richardson [citations omitted], stand for the proposition that counseled guilty pleas inevitably "waive" all antecedent constitutional violations.... The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. Menna v. New York, 423 U.S. 61, 62-63, n. 2, 96 S. Ct. 241, 242, 46 L. Ed. 2d 195 (1975). [Emphasis added.]

 As with the case before me, the cases of the Brady trilogy and Tollett v. Henderson all dealt with efforts by defendants to withdraw guilty pleas years after conviction. However, in those Sureme Court decisions it was determined that the guilty pleas were perfectly valid when initially entered. These cases do not foreclose inquiry into the nature of petitioner's guilty plea here. Since petitioner's claim is that his plea of guilty was not valid when entered into because it was not voluntary, knowing and intelligent, the Brady trilogy and Tollett v. Henderson do not act as a bar to consideration of petitioner's claims in this proceeding.

 A guilty plea is "a grave and solemn act to be accepted only with care and discernment" because "the plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial." Brady v. United States, supra, 397 U.S. at 748, 90 S. Ct. at 1469. Not only does a guilty plea constitute a waiver of the fundamental right to a jury trial [see Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968)], but such action by a defendant also constitutes a waiver of one's right to remain silent [Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)], to confront one's accusers [Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)], to present witnesses in one's defense ...

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