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AMES v. NEW YORK STATE BD. OF PAROLE

September 5, 1984

DOUGLAS AMES, Petitioner, against NEW YORK STATE BOARD OF PAROLE, Respondent.


The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

Platt, D.J.

 Petitioner Douglas Ames, appearing pro se, has moved this Court for a writ of habeas corpus under section 2254 of Title 28 of the United States Code. He contends that his pleas of guilty to charges of robbery and attempted robbery in the first degree were not entered knowingly and voluntarily and were accepted by the Kings County Supreme Court without a factual basis. He also argues that he was denied effective assistance of counsel in connection with the entering of his plea. As a result, he maintains that the Fifth, Sixth and Fourteenth Amendments to the United States Constitution have been violated and seeks to vacate the pleas and judgments. For the reasons stated below, the petition for a writ of habeas corpus is granted.

 I. THE FACTS

 On March 22, 1974, petitioner, represented by counsel, entered pleas of guilty in the Kings County Supreme Court to ten counts of robbery in the first degree, two counts of attempted robbery in the first degree, four counts of robbery in the second degree, six counts of grand larceny in the third degree, one count of attempted grand larceny in the third degree, and one count of criminal possession of a dangerous drug in the sixth degree. Prior to accepting petitioner's plea, the Court determined that he had discussed his case with his lawyer and advised him that by pleading guilty he waived the right to a trial by jury, the right to produce witnesses in his own behalf and the right to cross-examine witnesses testifying for the People. The Court also informed Mr. Ames of the range of punishment that would be imposed and stressed that, as a predicate felon, he would receive a mandatory jail sentence. Petitioner indicated he understood that by pleading guilty he was admitting he was in fact guilty of the crime charged and did not wish to go to trial.

 The Court then asked Mr. Ames to describe what had happened in the course of each of the alleged crimes. He admitted to each of the robberies, offering details as to their execution and, as he described each crime, clearly stated that in each of them he had used a fake pistol. The Court accepted his plea of guilty to robbery in the first degree and entered a conviction upon all the charges. The Court did not advise the petitioner as to the nature of elements of the crime of robbery in the first degree. The Court also did not inform petitioner or question him as to his awareness of the fact that, if he had in fact used a fake pistol in the robberies, he would have an affirmative defense to robbery in the first degree which would convert the crime to robbery in the second degree. *fn1"

 On May 8, 1974, petitioner, as a second-felony offender, was sentenced to concurrent terms of eight to sixteen years on the first degree robbery counts, five to ten years on the counts of attempted first degree robbery, two to four years on the counts of second degree robbery, one year on the grand larceny counts, one year on the attempted grand larceny count, and one year on the drug count.

 Petitioner appealed the conviction to the Appellate Division, Second Department. He argued that his plea should be vacated under the principals expressed by the New York Court of Appeals in People v. Serrano, 15 N.Y.2d 304, 206 N.E.2d 330, 258 N.Y.S.2d 386 (1965), *fn2" because the Court improperly accepted the plea to first degree robbery when the facts given by him during the plea allocution demonstrated an affirmative defense. The judgment was affirmed without opinion on November 14, 1975 and petitioner's motion for reagrument was denied on January 16, 1976. The New York Court of Appeals denied his motion for leave to appeal on February 4, 1976.

 Pursuant to New york Criminal Procedure Law § 440.10 (McKinney 1983), petitioner then moved to vacate the judgment of the Kings County Supreme Court. He once again asserted his argument under Serrano and also argued that he had had inadequate assistance of counsel since he had not been informed of the affirmative defense. This motion was denied without opinion on June 22, 1976 and leave to appeal the denial was denied by the Appellate Division, Second Department on October 1, 1976.

 Petitioner then filed an application for a writ of habeas corpus with this Court, claiming violations of his Fifth, Sixth and Fourteenth Amendment rights. We ordered an evidentiary hearing, which was held on April 4, 1977. Petitioner and his trial counsel testified at the hearing. Petitioner testified that none of the lawyers he had encountered in connection with his various robbery indictments, including his trial counsel, had informed him of a possible affirmative defense even though he had told each of them that in each of the robberies he had used a fake pistol. He further testified that he did not have independent knowledge of the defense and had only learned of it after he had begun to serve his sentence. His trial counsel testified that he did not recall whether he had ever told Mr. Ames that the use of a fake pistol was an affirmative defense. However, he testified that, although Mr. Ames told him he had used a fake weapon, "he [Mr. Ames] never stated he knew anything about [an affirmative defense]." [Transcript of April 4, 1977 Hearing p. 41].

 On June 27, 1978, we issued an opinion denying the peition on the ground that Mr. Ames had failed to exhaust his claims in State Court because the federal questions raised in his habeas corpus petition had not been properly presented to the State Courts. After granting petitioner's motion for leave to reargue, we affirmed our original decision and denied petitioner's application for a certificate of probable cause.

 On February 24, 1981, petitioner was released on parole. He was subsequently convicted of robbery in the second degree in Queens County and a warrant from the New York State Division of Parole was lodged against him. He was sentenced to seven and a half years to fifteen years as a second felony offender.

 On November 10, 1982, petitioner, mindful of this Court's prior decision concerning his failure to satisfy the exhaustion requirement and of the fact that he remains within the custody and control of the New York State Division of Parole, filed another motion to vacate his 1974 judgment of conviction with the Supreme Court, Kings County. He raised his federal claims, arguing that, because his defense counsel had not explained the possible presence and effect of an affirmative defense and the Court had accepted the plea without further inquiry after his factual allocation indicated an affirmative defense, his plea of guilty was not voluntary and knowing and was entered in violation of the Fifth, Sixth and Fourteenth Amendments of the Constitution. By opinion dated January 28, 1983, the Supreme Court denied petitioner's motion. Leave to appeal was denied.

 Petitioner then filed this application. Since the issues presented here are identical to those raised by the petitioner in the State Courts, he has fully exhausted his State remedies and may proceed under 28 U.S.C. § 2254(b)(1982). Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971).

 II. DISCUSSION

 A. The Petitioner's Claim that his Plea of Guilty was not ...


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