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October 18, 1979


The opinion of the court was delivered by: WEINFELD

Petitioner, now serving a sentence of a minimum of three years to a maximum of six years, pursuant to a judgment of conviction entered upon his plea of guilty to robbery in the third degree in the State Supreme Court, New York County, petitions for his release by way of federal habeas corpus. *fn1"

Petitioner (defendant) seeks to void his conviction upon a claim that he was denied due process of law in that (1) the Court denied his motion to withdraw his guilty plea without a hearing, despite his assertion that he was not guilty, and (2) he was denied his right to counsel when his attorney declined to move on his behalf for the withdrawal of the guilty plea, and by the failure of the Court thereupon to appoint substitute counsel. The claims are somewhat interrelated and may be considered against the background of the facts incidental to the Wade hearings, *fn2" the entry of the plea of guilty and the sentencing hearing.

 Petitioner was charged in two separate indictments with the crimes of larceny in the third degree, burglary in the third degree and grand larceny committed on two separate occasions. In one indictment, the victim was David Kertes, 91 years of age (Kertes). In the other, the victim was Leon Endin (Endin) also an old man. In each case, petitioner through counsel moved to suppress pre-trial identifications. As to each charge, the Wade hearing was conducted separately and successively on the same day, September 2, 1976 before State Supreme Court Justice Alfred H. Kleinman. In the Kertes case, the investigating detective testified that a neighbor of the victim had identified, from a series of eighteen photographs, petitioner as a man he had observed loitering in front of his apartment building and as the one "involved in the crime; this is the man that did it."

 Another detective testified that two days later a lineup was conducted of six persons seated in a room outside of which the same witness, the neighbor, viewed them through a one-way mirror and identified the petitioner as the assailant of Kertes. Two lawyers representing petitioner were present at the lineup. Upon the conclusion of the hearing the Court made a specific finding that neither the photo display nor the physical lineup was tainted in any respect and denied the motion to suppress.

 As the hearing in the Endin case was about to commence at an afternoon session, petitioner's counsel referred to the earlier Kertes hearing and said "I would like for the record to object to the fact that the witness himself was not called and produced by the People." The Court responded the statute did not require the prosecution to call any specific witnesses, noting that defendant had the right to call witnesses on his own behalf. The Court, treating the motion as one for reconsideration, denied it.

 The Court then proceeded with the Endin hearing. A detective testified that on May 16, 1976 two folders containing approximately fourteen pictures were displayed separately to Endin and his son, out of the presence of one another, and that each, without hesitation, identified the picture of defendant as that of the assailant. Another detective testified that thereafter, on June 3, 1976, a line-up identification procedure took place, participated in by defendant's lawyer who arranged the chairs of the persons to be viewed from outside the room through a one-way mirror. He further testified that the son of the victim made a positive identification of defendant as his father's assailant, and that the father, after a second and closeup view, thought the defendant was his assaulter. In this instance, too, Justice Kleinman denied the motion to suppress upon a specific finding that neither the photographic display nor the lineup procedure was tainted in any respect by impermissible suggestion.

 With matters in this posture the Kertes case was called for trial on February 23, 1977. The defendant was then represented by an attorney other than the one who was his counsel at the Wade hearing. During the voir dire of jurors, the petitioner offered to plead guilty to robbery in the third degree to cover all counts of both indictments. The plea was the result of a plea bargain based on extensive discussions which had preceded the offer. The prosecution recommended its acceptance. It contemplated a sentence of three to six years, consecutive to the sentence of four to twelve years under a prior conviction on which defendant was then on parole, with a recommendation to the Parole Board that the sentence to be imposed on the current charge would subsume any period of incarceration that the parole board had the right to impose for violation of his parole.

 The Court, after first emphasizing that the Parole Board was not required to accept its recommendation, searchingly questioned the defendant to assure that the offered plea was voluntarily and understandingly made, and that there was a factual basis for the plea. After the prosecutor gave a broad outline of both crimes, he observed that defense counsel "had an opportunity to interview all the identifying witnesses. . . . " The prosecutor then set forth the details of the Kertes charge and the available proof to sustain it. The Court asked the defendant if the facts as stated by the prosecutor were true to which he responded "no" and that he was not guilty of the crime. The Court inquired why he had offered to plead guilty and suggested he talk to his lawyer. The defendant then admitted his guilt and made a detailed statement which established that he had committed the crime charged in the Kertes indictment. The Court made it crystal clear that if it decided a sentence of more than three to six years was warranted the petitioner had the option to withdraw the guilty plea and stand trial. The plea was accepted and sentencing scheduled for April 6, 1977.

 At the sentencing, the prosecutor filed an information charging the defendant with a 1972 conviction of robbery in the first degree as a predicate felony conviction. The defendant acknowledged his prior conviction but then announced he wished to withdraw his guilty plea and that he had conferred with his counsel with respect thereto. His lawyer noted that he had previously informed the Court that he could not in good faith make such a motion. The Court stated it would appoint new counsel but suggested that counsel continue to represent defendant for the purpose of the application and observed that it saw no conflict between defendant and counsel at that time. Counsel replied that the defendant's application might pose a conflict to which the Court responded "not necessarily" since the basis of defendant's application was not known.

 The defendant then said that he had pled guilty not because he was guilty but "because of distress," the denial of his Wade application and the ineffective representation of his counsel at that hearing in the failure to subpoena witnesses. *fn3" Counsel, in response to the Court's inquiry, stated that the defendant had been advised of his rights. The Court then asked counsel if he were thoroughly convinced that the previously entered plea was "a true expression of this defendant's desire to plead guilty," to which counsel responded, "This is a problem, your Honor. I don't want to close the door on this guy because of a statement I should make. . . . How could I be making a motion . . . and then closing the door."

 The Court thereupon stated:

I have reviewed the record in this case. I'm aware of the fact that the plea took place during the course of the selection of the Jury. And the allocution in this case was thorough. The facts were gone through with this defendant. He was asked whether he pleads guilty because he is guilty.
The Court is absolutely satisfied that the allocution contained therein thoroughly covered this particular matter and the Court is absolutely convinced that you, as counsel for this defendant, recognizing the vigor in which you pursued the defense of this defendant would not in any way take the plea in this Court unless you were thorougly (sic) convinced that this defendant wished to plead guilty.
The Court has read through the allocution. This defendant has not in any way indicated to this Court any ...

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