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GUARINO v. DUNHAM

July 9, 1986.

Jeff GUARINO, Plaintiff,
v.
W. DUNHAM, Superintendent, Arthur Kill Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Defendants.



The opinion of the court was delivered by: KORMAN

KORMAN, District Judge.

Petitioner, Jeff Guarino, is serving a term of imprisonment of seven to twenty-one years pursuant to a judgment, entered in the Supreme Court of the State of New York (Suffolk County), convicting him of Robbery in the first degree. The judgment of conviction was affirmed by the Appellate Division of the Second Department on July 12, 1982, (People v. Guarino, 89 A.D.2d 825, 452 N.Y.S.2d 972) and leave to appeal to the Court of Appeals was denied on August 8, 1982 (57 N.Y.2d 685, 454 N.Y.S.2d 1047, 440 N.E.2d 541). This petition for a writ of habeas corpus, which he has filed pursuant to 28 U.S.C. § 2254, mirrors the brief filed in petitioner's unsuccessful appeal from the judgment of conviction. Specifically, petitioner challenges the judgment of conviction on the grounds, inter alia, that he was denied his right to counsel of his choice. *fn1"

 The record of the trial shows that in the middle of jury selection, petitioner's attorney apprised the trial judge that petitioner "still wishes to plead guilty to the charge of robbery in the first degree under the indictment" and "also that he has an attorney from Brooklyn coming out to be substituted for me" (Tr. 485). Petitioner, however, apparently did not even know the name of the attorney to be substituted (Tr. 493). Moreover, the only reason given by the petitioner for the desired substitution was his attorney's apparently candid advice regarding the likelihood of conviction in a case in which the evidence was overwhelming, *fn2" and in which petitioner offered to plead guilty both before and after his effort to replace counsel. Under these circumstances, the denial of his motion for a continuance for the purpose of allowing the substitution of counsel did not violate his right to counsel of his choice. United States ex rel. Baskerville v. Deegan, 428 F.2d 714, 716-717 (2d Cir.) cert. denied, 400 U.S. 928, 91 S. Ct. 193, 27 L. Ed. 2d 188 (1970), and cases cited therein.

 More troubling, and arguably related to this claim, is the manner in which petitioner's attorney participated in depriving him of the substantial advantage of a plea bargain that had been entered into with the District Attorney in which petitioner would have pled guilty to Robbery in the first degree. *fn3" Although this was the same offense of which he was ultimately convicted, under the terms of the agreement with the District Attorney he would have received a sentence of from four to twelve years in contrast to the sentence of seven to twenty-one years which was imposed.

 The record shows that, during the allocution which accompanied the taking of a guilty plea, petitioner was in the process of explaining that he and his accomplices had been driving around Long Island on the date of the crime and that they decided to rob Idone's Jewelry store. The following colloquy then ensued (Tr. 455):

 DEFENDANT GUARINO: Well, we were drinking. We seen one of the small stores. We decided to do it.

 THE COURT: Were you drunk?

 DEFENDANT GUARINO: Yes, I was.

 THE COURT: That's it.

 MR. O'LEARY: You were drunk?

 DEFENDANT GUARINO: Yes, I was drunk.

 MR. O'LEARY: Let's go to trial.

 MR. FELDMAN: People are ready for trial, Judge.

 The termination of the plea allocution at this point, because petitioner stated he was drunk when the offense was committed, was plainly premature. The fact that the defendant was "drunk" would, in the words of the trial judge's instruction to the jury, "not, in and of itself, [constitute] a defense to a criminal charge" (Tr. 824). The question was not whether the defendant "was drunk or intoxicated, but whether his condition was of such a character that it destroyed the power to form a particular intent, which is a necessary element of the crime of ...


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