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UNITED STATES EX REL. WILLBRIGHT v. SMITH

November 16, 1982

UNITED STATES OF AMERICA, ex rel. THEODORE WILLBRIGHT, Petitioner,
v.
HAROLD J. SMITH, Superintendent, Attica Correctional Facility, Attica, New York, Respondent.



The opinion of the court was delivered by: SWEET

SWEET, D.J.

Theodore Willbright ("Willbright") filed this habeas corpus petition in September 1981, claiming that his plea of guilty in state court was invalid because the court "failed to make any factual inquiry of Willbright concerning his conduct which gave rise to the factual basis for the guilty plea." The petition was referred to Magistrate Nina Gershon who, in her Report and Recommendation dated July 23, 1982, concluded that Willbright's contention that the state court was constitutionally required to make a factual basis inquiry is "without merit," and recommended that the petition be dismissed. Objections to the report were filed. Notwithstanding, the recommendation of the Magistrate will be adopted, and the petition will be dismissed. Because of the absence of a direct ruling on the issue presented from our Court of Appeals or the Supreme Court and because of the clear difference between the practice of the federal and New York state courts, a discussion of Willbright's plea, and the constitutional level of plea allocution requirements generally is in order.

 Willbright was indicted in the Supreme Couirt of the State of New York, Westchester County, in December, 1974 and charged along with three co-defendants with murder in the second degree, kidnapping in the second degree, and possession of a weapon in the fourth degree. On October 20, 1975, after two of the co-defendants had been convicted at jury trials, and one acquitted, Willbright withdrew his previously-entered plea of not guilty, and pursuant to a plea arrangement, entered a plea of guilty to the murder and kidnapping counts. The Assistant District Attorney conducted the voir dire of Willbright:

 MR. RYAN: Have you heard the application of your attorney to withdraw your previously entered plea of not guilty and plead guilty to Counts 2 and 3 of the Indictment 1132 of 1974?

 THE DEFENDANT: Yes.

 MR. RYAN: Do you make this plea freely and voluntarily?

 THE DEFENDANT: Yes, I do.

 MR. RYAN: Have you had an opportunity to discuss this matter with your attorney?

 THE DEFENDANT: Yes, I have.

 MR. RYAN: Have you also had an opportunity to discuss this matter with members of your family?

 THE DEFENDANT: Yes, I have.

 MR. RYAN: Do you need any more time to discuss this with anyone?

 THE DEFENDANT: No.

 MR. RYAN: Do you realize that you are pleading guilty to the crimes of murder in the second degree, a Class A felony, and Kidnappping in the second degree, a Class B felony?

 THE DEFENDANT: Yes.

 MR. RYAN: Do you realize that you are entitled to a trial by the Court or by the ...


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