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FURMAN v. DALSHEIM

April 15, 1980

HUGH MAX FURMAN, Petitioner, against STEPHEN DALSHEIM, SUPERINTENDENT, OSSINING CORRECTIONAL FACILITY, Respondent.


The opinion of the court was delivered by: WERKER

Pro Se petitioner Hugh Max Furman is presently incarcerated at the Wallkill Correctional Facility, Wallkill, New York, pursuant to judgments of conviction entered in Dutchess and Orange Counties in 1978. In this petition for habeas corpus relief under 28 U.S.C. § 2254, petitioner seeks review of a 1971 Orange County conviction which was the basis for his being sentenced in 1978 as a second felony offender.

FACTS

 In 1969 petitioner and three co-defendants were indicted by an Orange County grand jury and charged with one count of burglary in the third degree and one count of petit larceny. Petitioner was arraigned on these charges on July 29, 1969 and entered a plea of not guilty. The burglary count of the indictment read as follows:

 
THE GRAND JURY OF THE COUNTY OF ORANGE, by this indictment, accuse . . . HUGH MAX FURMAN (and three others) of the crime of BURGLARY IN THE THIRD DEGREE in violation of the provisions of Section 140.20 of the Penal Law of the State of New York, committed as follows:
 
The said defendants, on or about the 27th day of April, 1969, at the Town of Newburgh, Orange County, New York, knowingly entered and remained unlawfully in a building owned by Fred Ferrary.

 Petitioner was subsequently charged in a second indictment with criminal possession of stolen property in the second degree and grand larceny in the third degree.

 On April 5, 1971, petitioner appeared with counsel before the Honorable Abraham Isseks, County Court Judge, Orange County, and changed his plea of not guilty to the burglary charge to guilty. As part of the plea agreement, the petit larceny count of the first indictment and the entire second indictment were dismissed. At the allocution, petitioner was not advised of the constitutional rights which were being waived by his guilty plea, nor did the court question him as to the circumstances and details of the crime to which he was pleading guilty. Petitioner was, however, advised that burglary in the third degree was a felony. In response to the court's inquiries, petitioner stated that he had discussed the plea with his attorney and that no promises had been made to him with respect to sentencing. It was clear to petitioner that his guilty plea to the burglary count would cover all outstanding counts and indictments.

 On June 15, 1971, Furman was sentenced to a term of 0 to 4 years imprisonment.

 Thereafter, petitioner filed a timely notice of appeal to the Appellate Division and was assigned counsel. The appeal was withdrawn in 1974, however, because petitioner "believed, due to (his) guilty plea, that there were no issues to assert on appeal." Reply affid. of Hugh Max Furman, sworn to Dec. 10, 1979, at 3. Prior to the withdrawal of his appeal, petitioner had moved pro se for a writ of coram nobis. That motion was denied without a hearing on November 10, 1971. Shortly thereafter, petitioner moved pro se to set aside the sentence pursuant to N.Y.C.P.L. § 440.20. Judge Isseks treated the motion as one to set aside judgment pursuant to N.Y.C.P.L. § 440.10 and denied the motion without a hearing on March 27, 1972. Petitioner's application to the Appellate Division for leave to appeal was denied on May 4, 1972 on the ground that his "remedy is by way of direct attack on the judgment of conviction by prosecution of the appeal therefrom." People v. Furman, N.Y.L.J., May 4, 1972 (2d Dep't).

 Petitioner filed a third motion after the denial of his second one and sought an order directing his return to Orange County Court for resentencing. He alleged in this motion that the indictment containing the burglary count was defective in that it had charged him with criminal trespass rather than burglary in the third degree. Judge Isseks found that the indictment was indeed defective, but nevertheless denied the motion on the ground that the petitioner had waived any objections to the indictment by his failure to attack the sufficiency of the indictment when he "was called to judgment." People v. Furman, No. 34 14/70, slip op. at 2 (Orange Co. Ct. Dec. 7, 1972).

 In 1977, after having served his sentence on the 1971 conviction, petitioner was indicted in Orange and Dutchess Counties and charged with having committed a number of felonies. *fn1" He pled guilty to attempted possession of stolen property in Dutchess County, and was sentenced on June 13, 1978 as a second felony offender to a term of 2 to 4 years. He also pled guilty to attempted reckless endangerment in Orange County and was sentenced on June 26, 1978 as a second felony offender to a term of 1 1/2 to 3 years to run concurrently with the Dutchess County sentence. The predicate felony for petitioner's being sentenced as a second felony offender was his 1971 conviction. See Respondent's Mem. of Law in Opp. to Petition, at 4-5.

 In 1979, petitioner moved once again to vacate his 1971 conviction on the grounds that the indictment was defective and that his guilty plea was entered in violation of his constitutional rights. On June 1, 1979, Judge Isseks denied the motion on the grounds that Furman had failed to perfect his appeal and that this failure was unjustifiable. N.Y.C.P.L. § 440.10. On July 20, 1979, leave to appeal to the Appellate Division, Second Department, was denied.

 In October 1979, petitioner filed the instant application for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 on the following grounds: "Plea of guilty and Indictment are defective and not ...


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