Guarino v. Dunham, 637 F. Supp. 1180, 1181 (E.D.N.Y. 1986);
People v. Cintron, 74 A.D.2d 457, 428 N.Y.S.2d 267 (2d Dep't
1980). The record does not substantiate such a finding.
The singular basis for petitioner's contention that he was
intoxicated during the commission of the crime is his own
statement during the plea allocution in which he stated that he
was "quite high on Angel Dust." Plea tr. Nov. 16 at 8. At the
plea, however, petitioner clearly recalled entering the store
to demand money and then feeling threatened by some movement of
the victim which prompted petitioner to shoot and kill him.
Plea tr. Nov. 16 at 8-9.
The facts, as recited during petitioner's plea, reflect
purposeful conduct that is inconsistent with disabling
intoxication. Since the record does not contain any credible
evidence to indicate that petitioner was intoxicated, and if
so, to what extent, the Court cannot fault counsel for not
pursuing this defense. Indeed, "if there is no bona fide
defense to the charge, counsel cannot create one and may
disserve the interests of his client by attempting a useless
charade." United States v. Cronic, 466 U.S. 648, 656-57 n. 19,
104 S.Ct. 2039, 2045-46 n. 19, 80 L.Ed.2d 657 (1984); see also
Hill, supra, 474 U.S. at 59, 106 S.Ct. at 370 (counsel will not
be held in error for not having pursued a defense which had a
negligible chance for success); Isaraphanich v. United States,
632 F. Supp. 1531, 1534 (S.D.N.Y. 1986).
II. Trial Court's Failure to Disclose Available Defenses
In connection with the Hill test for determining the validity
of guilty pleas, a court may accept a defendant's guilty plea
as long as it informs the accused that "alternative courses of
action" are open to him. Alford, supra, 400 U.S. at 31, 91
S.Ct. at 164. The court need not, however, enumerate every
constitutional right a defendant will waive if he pleads
guilty. Guerrero v. Harris, 461 F. Supp. 583, 588 (S.D.N Y
1978). This court is satisfied that the trial court, after
making the appropriate and requisite inquiries, provided more
than enough information to petitioner so as to ensure a
"voluntary and intelligent" plea. Alford, 400 U.S. at 31, 91
S.Ct. at 164.
When defense counsel moved to change petitioner's plea to a
plea of guilty, the court made a finding that petitioner was
aware of the constitutional rights he waived by pleading
guilty. Plea tr. Nov. 16 at 2-5. Petitioner affirmatively
stated that he understood the rights he was giving up, then
explained the plea agreement and the facts of the crime. Plea
tr. Nov. 16 at 8-9. The plea in t`is case is wholly valid and,
in all respects, constitutional.
III. Breach of Plea Bargain
Precedent, equity and common sense command that "when a plea
rests in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled."
Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498,
30 L.Ed.2d 427 (1971); United States v. Alexander, 869 F.2d 91,
94-95 (2d Cir. 1989). It is equally well settled that an
"otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that
the constitutional error was harmless beyond a reasonable
doubt." Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct.
1431, 1436, 89 L.Ed.2d 674 (1986); see also Leecan v. Lopes,
893 F.2d 1434 (2d Cir.), cert. denied, ___ U.S. ___, 110 S.Ct.
2627, 110 L.Ed.2d 647 (1990) (applying the harmless-error
analysis in a habeas corpus case).
Petitioner claims that the prosecutor breached a plea bargain
when, at sentencing, he recommended the maximum sentence.
Sentencing tr. Dec. 15 at 2. The facts, however, do not support
a finding that any agreement prevented the prosecutor from
taking a position at sentence. At the plea allocution,
petitioner was asked several times by the court whether any
inducement, other than the state's agreement not to follow up
on separate charges
involving his relatives, existed. Plea tr. Nov. 16 at 5-7.
Furthermore, the court deliberately focused petitioner's
attention by asking "particularly, was there any inducement or
promise made to you as regards [to] this Court's sentence?"
Petitioner unequivocally replied "No, there was not, your
Honor. No, there was not." Plea tr. Nov. 16 at 7.
Assuming, however, that the plea agreement in this case had
been breached, the Court is convinced that the error falls
under the Delaware harmless-error doctrine. Upon defense
counsel's immediate objection to the prosecutor's
recommendation for the maximum penalty, the sentencing judge
stated outright that he would "make the ultimate determination
as regards the sentence of this defendant regardless of the
recommendation of anybody." Sentence tr. Dec. 15 at 2-3. The
sentencing court did not, in fact, give the maximum penalty.
People v. Carter, 73 A.D.2d 953, 424 N.Y.S.2d 15 (2d Dep't),
leave to appeal denied, 49 N.Y.2d 892, 427 N.Y.S.2d 1029,
405 N.E.2d 239 (1980), cert. denied 449 U.S. 861, 101 S.Ct. 164, 66
L.Ed.2d 77 (1980), and added that it was not inclined to
sentence first-felony offenders to the maximum. Sentence tr.
Dec. 15 at 5; see also Respondent's Brief at 6. On a review of
the record, the Court is satisfied that prejudice, if any,
accruing from the prosecutor's request for the maximum sentence
was harmless and does not provide a basis for federal habeas
corpus relief in this case.
IV. Voluntariness of Plea
Petitioner's last argument in support of his motion for a
writ of habeas corpus is that his plea was involuntary, not
because of any mental incapacity, but because he was coerced by
the prosecutor. It is basic to our system of justice that a
plea of guilty not be coerced but, rather, be both "voluntary
and intelligent." Alford, supra, 400 U.S. at 31, 91 S.Ct. at
164. When made with the assistance of counsel, guilty pleas —
as part of some exchange with the prosecution — are consistent
with the "voluntary and intelligent" requirement. Mabry v.
Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546, 81 L.Ed.2d
437 (1984). Similarly, "a guilty plea is [not] invalid . . .
whenever motivated by the defendant's desire to accept the
certainty or probability of a lesser penalty. . . ." Brady v.
United States, 397 U.S. 742, 751, 90 S.Ct. 1463, 1470, 25
L.Ed.2d 747 (1970).
Petitioner claims that he was forced into pleading guilty
because the prosecutor threatened to bring additional charges
against him. On a review of the record, the Court finds this
final claim to be without merit. When asked if anyone forced,
coerced, or threatened him into pleading guilty, petitioner
answered "no". Plea tr. Nov. 16 at 5. The mere fact that the
State promised to drop an investigation in contemplation of a
plea does not, conversely, make the investigation itself
tantamount to some form of undue influence. Petitioner's claim
of a coerced plea, therefore, fails.
Accordingly, the motion for a writ of habeas corpus must be,
and hereby is, denied.