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KESSNER v. DUPRAS

June 7, 1993

SCOTT A. KESSNER, Petitioner,
v.
WILLIAM DUPRAS, Acting Superintendent of the Cayuga Correctional Facility, Respondent.



The opinion of the court was delivered by: CAROL E. HECKMAN

 This petition for habeas corpus relief under 28 U.S.C. § 2254 was referred to the undersigned by Hon. John T. Elfvin pursuant to 28 U.S.C. § 636(c), upon consent of the parties, for all further proceedings in the case and entry of judgment. For the following reasons, the petition is dismissed in its entirety.

 FACTS

 On November 30, 1990, Petitioner was arraigned in New York State Supreme Court on a seven-count indictment charging him with reckless endangerment, criminal mischief, attempted murder, criminal possession of a weapon, and attempted criminal mischief (R. 113-15, 117-24). *fn1" The indictment alleged that on May 24, 1990, Petitioner crashed his vehicle into a vehicle driven by his ex-girlfriend, Marcy Pinzotti, and that on October 12, 1990, Petitioner attached a pipe bomb to the undercarriage of the Pinzotti family vehicle (R. 113-15).

 At the arraignment, State Supreme Court Justice Theodore S. Kasler continued Petitioner on $ 10,000.00 cash bail previously posted, and directed the Assistant District Attorney to prepare an order of protection (R. 123). The order of protection, signed by Justice Kasler on December 4, 1990, provided that, as conditions to his release on bail, Petitioner must (a) stay away from the home, school, business or place of employment of Marcy Pinzotti and her entire family; (b) refrain from harassing, intimidating, threatening or otherwise interfering with Marcy Pinzotti and her entire family; and, (c) be at his home by 9:00 p.m. daily (R. 111-12). The order further provided that willful failure to obey these conditions "may, after court hearing, result in your imprisonment for up to 30 days for criminal contempt of court, or, after prosecution under Penal Law § 215.50, in your imprisonment for up to one year" (R. 111).

 
THE COURT: The Court finds that based on the examination of the defendant that his plea is made upon knowledge of the charge and understanding by him of his constitutional rights; that he has indicated in open court that his plea is voluntary and free from any influence from the prosecution, his counsel, the Court or any other person or persons; that no promises have been made by the prosecution with regard to the sentence in this matter. The Court will acknowledge the commitments made or strike that. The Court will acknowledge the defense counsel's presentation on the record of the Court's commitment with regard to sentence, which would also be conditioned upon Mr. Kessner staying out of trouble between now and the day of sentence. Do you understand that, Mr. Kessner?
 
DEFENDANT KESSNER: Yes.
 
MR. GREENBAUM: Understood, Your Honor.
 
THE COURT: And if, in fact, you do get into trouble between now and then the Court will withdraw its commitment to you, do you understand that?
 
DEFENDANT KESSNER: Yes.
 
THE COURT: And will not permit you to withdraw your plea, do you understand that?
 
DEFENDANT KESSNER: Yes.

 (R. 75-76). Sentencing was scheduled for April 15, 1991 (R. 77).

 On February 23, 1991, while Petitioner was awaiting sentence, he was arrested at his Grand Island home on charges of aggravated harassment, criminal contempt and resisting arrest. These charges were based on allegations that he violated the order of protection by making threats to Marcy Pinzotti during a telephone call to the home of Craig Krawczyk (R. 32, 90, 96-97). Upon application by the District Attorney's office, Justice Rossetti revoked bail and committed Petitioner to custody pending sentencing (R. 13, 32-33). Petitioner withdrew his request for a hearing to contest the bail revocation, and remained incarcerated until the sentencing date (id.).

 At sentencing on April 22, 1991, Justice Rossetti noted that both the Grand Island Justice of the Peace and Justice Kasler, in his order of protection, had directed Petitioner to avoid contact with Marcy Pinzotti, and that this direction had been continued as a condition of bail. Justice Rossetti found the allegations regarding the February 23, 1991 telephone call to be "a violation of the Court's condition of bail" (R. 97). He withdrew his previous commitment to impose the "minimum minimum and minimum maximum" sentence, and sentenced Petitioner to an indeterminate prison term of a minimum of two years and a maximum of six years (R. 99-100).

 On May 15, 1991, Petitioner appealed from the April 22, 1991 judgment of conviction and sentence to the Appellate Division, Fourth Department (R. 4). On August 28, 1991, Petitioner moved to set aside his sentence pursuant to N.Y.Crim.Proc.Law § 440.20(1) (R. 47). Petitioner argued in his § 440.20(1) motion that the sentencing court's withdrawal of its previous commitment was improper because the admonition that Petitioner not "get into trouble" between the time of plea and sentence was not explicit enough to have allowed Petitioner to fully understand the condition and the consequences of its violation (R. 48-63).

 By decision and order dated October 10, 1991, Justice Rossetti denied Petitioner's § 440.20(1) motion, finding that:


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