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July 26, 1983

ANGELO CALDAROLA, Petitioner, against WILLIAM C. QUICK, Superintendent of Wallkill Correctional Facility, and ROBERT ABRAMS, Attorney General of the State of New York, Respondents.

The opinion of the court was delivered by: NEAHER


NEAHER, District Judge.

 In 1976, petitioner Angelo Caldarola pled guilty to an indictment charging burglary in the second degree. Asserting that his plea resulted from incorrect statements made by his attorney, the prosecutor, and the trial judge, concerning potential sentencing consequences, petitioner seeks a writ of habeas corpus setting aside the burglary conviction.28 U.S.C. § 2254. After conducting an evidentiary hearing and completely reviewing the record, however, the court finds petitioner's claims insufficient to invalidate his guilty plea. For the reasons that follow, the writ is denied.

 Sentencing Possibilities

 Central to petitioner's challenge is his contention that he pled guilty in exchange for an assurance that he would not be sentenced as a persistent felony offender under N.Y. Penal Law § 70.10(2) dictated that a defendant found to be a persistent felony offender would receive an indeterminate sentence; the statute set a minimum of between fifteen and twenty-five years of incarceration and a maximum term of life imprisonment. To be found a persistent felony offender, a defendant must have had two or more prior felony convictions which met the following criteria:

 (1) that a sentence to a term of imprisonment in excess of one year, or a sentence to death, was imposed therefore; and

 (ii) that the defendant was imprisoned under sentence for such conviction prior to the commission of the present felony; and

 (iii) that the defendant was not pardoned on the ground of innocence.

 Id., § 70.10(1)(b). Additionally, the statute required the sentencing judge to make a post-conviction determination "that the history and character of the defendant and the nature of an circumstances of his criinal conduct indicate that extended incarceration and life-time supervision will best serve the public interest." Id., § 70.10(2). Although petitioner had a record of prior felony arrests and convictions, he was not vulnerable to sentencing as a persistent felony offender because his prior convictions did not meet the requisite incarceration element.

 Petitioner did have at least one prior conviction which had resulted in a sentence for incarceration in excess of one year, and thus he qualified for sentencing as a predicate felony offender pursuant to the then-effective N.Y. Penal Law § 70.06. Section 70.06(2) required a sentencing judge to fix an indeterminate sentence within statutory guidleines. Petitioner was indicted on and pled guilty to a Class C felony and lesser included charges. Accordingly, he faced a maximum sentence exposure of between six and fifteen years imprisonment; the minimum was set by statute at half the maximum actually imposed. Id., § 70.06(2), (3)(b), & (4). Petitioner was in fact sentenced to six-to-twelve years imprisonment.

 The Guilty Plea

 As petitioner twice admitted, he was arrested on February 9, 1975, at about 7 p.m., in the home of Dr. and Mrs. Eng on Staten Island. Some money and jewelry belonging to the homeowners were recovered from his pocket. Petitioner was released on bail initially set at $5,000.

 On March 26, 1975, petitioner was arraigned in New York State Supreme Court in Richmond County before the Honorable Theodore G. Barlow. Although petitioner had retained Martin Light, Esq., as legal counsel, he was represented at the arraignment by Louis Diamond, Esq. The prosecutor requested that bail be increased to $10,000. Judge Barlow then inquired as to whether petitioner had two prior felony convictions, and Diamond responded that he did. Over Diamond's protest, Judge Barlow set bail at $50,000, erroneously stating, "The man is facing a life imprisonment." Approximately three weeks later, bail was reduced to $25,000, and petitioner obtained his release.

 The next proceedings took the form of plea negotiations in December 1975. In the interim, petitioner and attorney Light assertedly did not discuss the potential for a sentence of life imprisonment. Light's deposition testimony, adopted as an exhibit by both petitioner and respondent, declared that Diamond never mentioned Judge Barlow's statement about the possibility of a life sentence. As to conversation with petitioner, Light stated, "Never once did we have a discussion about persistent felony offender or life imprisonment. The only conversations were, I don't see how you could go to trial. . . . I told him it's the type of case you have to take a plea." Petitioner's Exhibit ("PX") 1 at 9-10.

 Focusing on sentencing possibilities, Light had known that petitioner had multiple prior burglary arrests. He remembered informing petitioner of his vulnerability to sentencing as a predicate felony offender, but was unable to recall any concern about the persistent felony offender provision. He added, "[I]t's unheard of. I don't think I have ever had a case as -- I don't think I know of a case of anyone ever being sentenced as persistent felony offender. So, that conversation never came up between attorney and client, unless you run into the situation like that in February of 1976, where the judge threatened him." PX 1 at 8-9. Petitioner's testimony confirmed that the persistent felony offender issue was not considered during this period.

 Court appearance was scheduled in December 1975. While petitioner waited, Light, the prosecutor Stanley S. Nirenberg, and Judge Barlow participated in plea negotiations. No one disputed that petitioner was then offered an opportunity to plead guilty to burglary in the third degree, a Class D felony. Memories were vague, however, as to whether the offered sentence would be two-to-four or three-to-six years of imprisonment. Again without dispute, the minimum proposed time was necessarily half the maximum because petitioner was to be treated as a predicate felony offender. N.Y. Penal Law, § 70.06(4).

 Light relayed the offer to petitioner. At the evidentiary hearing, petitioner testified that he was pleased with the offer, but that he did not want to be incarcerated during the upcoming Christmas holidays. He thus sought an adjournment which he claimed Light requested and obtained. The risk of life imprisonment was not discussed.

 At his February 28, 1983 deposition, Light testified that the offer was to plead guilty to a Class C or D felony and to be sentenced to two-to-four or three-to-six years of imprisonment. He acknowledged that petitioner's status as a predicate felony offender was significant to the sentence offer, but he denied any discussion of persistent felony offender sentencing in the December negotiations. Significantly, Light's testimony did not parrallel petitioner's assertions that the plea decision was adjourned. Instead, Light claimed that petitioner simply rejected the offer in an apparent effort to manipulate an extension of his freedom during the holidays. Light added that petitioner "just didn't realize he was playing with fire." PX 1 at 21. Light did state, however, that the rejected offer was not withdrawn.

 At his deposition, counsel for respondent called Light's attention to an affidavit executed by Light on August 8, 1980. In the affidavit, Light stated that he knew that petitioner had a t least two prior felony convictions, and that he relied on the judge's and the prosecutor's statements concerning persistent felony offender status. He continued, "[B]ecause of the apparent potential for such a severe sentence, I endeavored to negotiate a disposition of the case, through a plea of guilty, that would guarantee that [petitioner] would not be sentenced as a persistent-felony offender." Respondent's Exhibit ("RX") B at 1. Apparently describing the December 1975 negotiations, Light stated that the offer would have allowed petitioner to plead guilty to a Class D felony "with the stipulation that the persistent-felony offender provisions would not be invoked," and that "after [petitioner] rejected that offer, the offer was withdrawn." Id. at 2. Light explained the inconsistency between his affidavit and deposition accounts: "In 1980 I may have had some other notes or the file in front of me, which I don't have now because I don't have any independent recollection. . . ." PX 1 at 15.

 Testifying at the evidentiary hearing, prosecutor Nirenberg also described the December 1975 negotiations. He confirmed that an offer was made to sentence petitioner to either two-to-four or three-to-six years as a predicate felony offender if petitioner would plead guilty to burglary in the third degree, a Class D felony. According to Nirenberg, when Light returned from conferring with his clients, Light stated that petitioner refused to plead. The rejected offer was withdrawn, and Nirenberg prepared for trial.

 Petitioner next appeared before Judge Barlow on Friday, February 20, 1976.The proceedings commenced with Light's representations that petitioner had gotten out of an sickbed to attend the scheduled court date beause he understood that he would be allowed to plead to a Class D felony.Judge Barlow responded that the offer Light described had been rejected by petitioner and subsequently withdrawn. Petitioner's options, the judge stated, were to plead to the first count in the indictment with no promise as to sentencing except that persistent felony offender treatment would not be invoked. Citing petitioner's apparent illness and fever, Light said that petitioner was unprepared to plead and he rejected the offer. The exchange between Light and Judge Barlow continued:

 The Court: . . . Is [petitioner] aware of the possible penalties of multiple felony offender?

 Mr. Light: I told him that you stated if he goes to trial and loses, you would give him life imprisonment.

 The Court: I did not state that.

 Mr. Light: Oh, I thought that was my understanding.

 The Court: No, Mr. Light, you know better than that. But the top penalty of a multiple offender who gets convicted of any felony, that is, a third felony offender, he gets 25 years life. Did you explain that to your client?

 Mr. Light: No, I told him he got life. but it is 25 to life?

 The Court: That you serve 25 before you are eligible for parole. I think we will pick a jury this afternoon. . . .

 Petitioner's Brief, Appendix B, at 3. In deference to Light's contentions concerning petitioner's health, however, the judge finally agreed to ...

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