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MAGEE v. ROMANO

September 16, 1992

GARY MAGEE, Petitioner, against SALVATORE ROMANO, WARDEN, SUFFOLK COUNTY JAIL, Respondent.


The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 Gary Magee ("petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following his arrest for selling cocaine to an undercover police officer, petitioner was charged with Criminal Possession of a Controlled Substance in the Third Degree and Criminal Sale of a Controlled Substance in the Third Degree, in violation of New York Penal Laws §§ 220.16 and 220.39, respectively. Petitioner subsequently entered into a plea agreement in which he pled guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree and waived his right to appeal in return for a four to eight year prison sentence. He now challenges that conviction on the grounds that (1) it was obtained by a guilty plea which was unlawfully induced or made involuntarily, without an understanding of the plea and its consequences; (2) he was denied effective assistance of counsel; (3) he was improperly denied substitute counsel; and (4) he was denied the right to appeal. For the reasons stated below, the petition is denied.

 I. BACKGROUND

 Petitioner was arrested on August 25, 1990, after he sold cocaine to an undercover police officer. On August 31, 1990 he was indicted on two class B felonies: Criminal Possession of a Controlled substance in the Third Degree and Criminal Sale of a Controlled Substance in the Third Degree. As a predicate felony of fender under Penal Law § 70.06, petitioner risked receiving a sentence of at least six to fifteen years in prison. Rather than proceed to trial, he entered into an agreement in which he pled guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree, a class C felony. In return for a four to eight year prison sentence, he waived his right to appeal except on grounds of excessiveness of sentence or jurisdiction of the court.

 Before accepting petitioner's plea, the state court directly inquired as to whether petitioner understood the consequences of the plea bargain:

 MISS HOFFMAN (attorney for the state): Your Honor, the People would consent to that application, with the understanding that at the time of sentence, the defendant be sentenced to an indeterminate period, the maximum being eight years, the minimum being four years, and he waive any right to appeal.

 THE COURT: Four to eight would mean the defendant is a predicate felony offender.

 MR. SILVERMAN: (attorney for petitioner): Yes, he is.

 THE COURT: An authorized disposition of sentence if the defendant is a predicate felony offender.

 MR. SILVERMAN: Yes, I believe him to be a predicate felony offender, Your Honor.

 THE COURT: Mr. Magee, did you hear what your lawyer said?

 THE DEFENDANT: I heard what he said.

 THE COURT: You heard what she said.

 THE DEFENDANT: Uh-huh.

 THE COURT: And it's a negotiated plea. You're waiving your right to appeal, and that you wish to enter a plea to this charge of Attempted Criminal Sale of a Controlled Substance in the Third Degree, a Class C Felony; is that correct, "C"?

 MR. SILVERMAN: Reduced to a C Felony.

 THE DEFENDANT: Yeah.

 THE COURT: You understand?

 THE DEFENDANT: ...


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