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August 29, 1994

ARTHUR KOHLER, JR., Petitioner, -vs- WALTER KELLY, Superintendent, Attica Correctional Facility, Respondent.

JOHN T. CURTIN, United States District Judge

The opinion of the court was delivered by: JOHN T. CURTIN

CURTIN, District Judge


 Petitioner Arthur Kohler, Jr., brings this habeas corpus action challenging his conviction for first-degree sodomy. Petitioner was indicted in a 24-count indictment by an Erie County grand jury on January 17, 1985. On March 25, 1987, he pleaded guilty to one count of sodomy in the first degree in New York State County Court, Erie County. He was sentenced on May 20, 1987, as a second violent felony offender to an indeterminate term of imprisonment from eight to sixteen years.

 Initially, petitioner moved in Erie County Court for an order vacating the judgment of conviction based upon CPL § 440.10. This motion was denied on October 28, 1988. Petitioner then appealed the judgment of conviction to the New York State Supreme Court, Appellate Division, Fourth Judicial Department. The court unanimously affirmed the conviction, rejecting petitioner's claims of ineffective assistance of counsel and improper acceptance of his guilty plea. On April 10, 1989, leave to appeal to the New York State Court of Appeals was denied. Petitioner's motion in the New York State County Court, Erie County, for an order vacating the judgment of conviction based upon CPL § 440.20 was denied on September 5, 1989.

 Having exhausted his state judicial remedies, petitioner now applies for a writ of habeas corpus from this court. He advances two basic grounds for relief. First, he alleges he was denied his Sixth Amendment right to counsel because of ineffective assistance of counsel. Petitioner cites six reasons why he received ineffective assistance from his court-appointed attorney: 1) Counsel failed to pursue a defense of intoxication; 2) Counsel failed to explore issues of petitioner's competency; 3) Counsel did not assist petitioner in exercising his right to appear before the grand jury; 4) Counsel erred by advising him to reject a plea bargain that would have resulted in a shorter sentence than he ultimately received; 5) Counsel failed to request that the judge recuse himself because of a potential conflict of interest; and 6) the attorney acted unethically by soliciting a $ 1,000.00 payment from petitioner. Petitioner's second claim for relief is that the trial court erred in accepting his guilty plea, which he claims was not an intelligent, voluntary act.


 I. Ineffective Assistance of Counsel

 The Sixth Amendment to the U.S. Constitution provides all criminal defendants the right to counsel. The right to counsel has been found to encompass the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970). The case of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), established the basis for judging claims of ineffective assistance of counsel. The benchmark is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. The Court established a two-part standard for evaluating claims of ineffective assistance. "First, the defendant must show that counsel's performance was deficient . . . . Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 687. In the first performance prong of this standard, the defendant must show that the representation fell below "an objective standard of reasonableness." Id. at 688. The second prejudice prong requires that the defendant show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. There is a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Id. at 689.

 The Strickland case dealt with errors made by counsel during a sentencing hearing in a capital murder case. In Hill v. Lockhart, 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985), the Court found that the two-part standard set out in Strickland is applicable to ineffective assistance claims arising out of the plea process. The first prong of the test is the same. The prejudice requirement focuses on whether counsel's unreasonably poor performance affected the outcome of the plea process. To satisfy this requirement, the defendant must show that there is "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 at 59.

 A. Intoxication Defense

 Petitioner first claims ineffective assistance of counsel based on his attorney's failure to inform him of a possible defense of intoxication. Petitioner asserts that this omission, combined with many other errors of counsel, prove that counsel's performance fell below a standard of reasonableness, and also prejudiced petitioner in that he received a more onerous sentence than he otherwise would have received. "Where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the 'prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." Hill, 474 at 59.

 In Panuccio v. Kelly, 927 F.2d 106, 109 (2d Cir. 1991), the United States Court of Appeals for the Second Circuit considered a claim of ineffective assistance of counsel by a petitioner who similarly maintained that he plead guilty only because his counsel never informed him that he could use an intoxication defense. The Panuccio court reiterated that the court must evaluate "the likelihood that an affirmative defense will be successful at trial . . ." and added that "an assessment of the probable increase or reduction in sentence relative to the plea if the defendant proceeds to trial [is also] clearly relevant to the determination of whether an attorney acted competently in recommending a plea." 927 F.2d at 109.

 Respondent first argues that defense counsel is not required to search for alibis which would amount to a fabrication of a defense. There is nothing in the record which would have led Kohler's attorney to believe that during the course of his criminal activity, Kohler was inebriated to the extent that he could not form the requisite intent to commit the crimes with which he was charged. On the contrary, the record indicates that the petitioner was in the victim's building working and conversing with the victim, and it does not appear that the victim noticed any drunkenness on the part of the petitioner. In addition, during the crime the petitioner capably drove to another county and then returned to Erie County without incident (Plea Transcript, 4-6). The question is not whether the petitioner was drunk, but whether his intoxication was of such a degree, character, and extent as to deprive him of the power to form a particular intent. People v. Koerber, 244 N.Y. 147, 155 N.E. 79 (1926); People v. Goodman, 152 A.D.2d 705, 544 N.Y.S.2d 163 (2d Dept. 1989).

 Petitioner's only evidence to support a defense of intoxication bears on his history of alcoholism and the fact that he was intoxicated at the time of arrest. Instances of intemperance prior to the commission of the offense cannot be considered in determining whether the defendant had the requisite mental state or was intoxicated at the time of the offense at issue. People v. Holliday, 38 N.Y.2d 763, 381 N.Y.S.2d 53, 343 N.E.2d 770 (1975).

 Respondent also claims that Kohler could not have used intoxication as a defense to first-degree sodomy. In general, intoxication is not a statutory defense but may be offered as evidence if it negates an element of the crime charged. N.Y. Penal Law § 15.25. Voluntary intoxication can be a defense if it prevents the formation of the specific intent necessary to complete the crime. People v. Westergard, 69 N.Y.2d 642, 511 N.Y.S.2d 587, 503 N.E.2d 1018 (1986). If the crime charged requires only a general intent, intent will be presumed from the intentional completion of the act, and intoxication will not be a defense. People v. Davis, 128 Misc. 2d 782, 491 N.Y.S.2d 240 (1985).

 New York courts have never conclusively defined sodomy as a general intent crime, although some courts have made that assumption. See, e.g., People v. Bagarozy, 132 A.D.2d 225, 522 N.Y.S.2d 848 (1st Dept. 1987), People v. Williams, 81 N.Y.2d 303, 598 N.Y.S.2d 167, 614 N.E.2d 730 (1993). Therefore, it is unclear whether Kohler could have presented an intoxication defense. Moreover, he was initially indicted on 24 counts, including other serious felonies. Had he proceeded to trial, Kohler may not have been able to use an intoxication defense against some of these other charges. The Panuccio court emphasized that in order to show prejudice in a guilty plea, the petitioner must show that the defense which he would have used at trial was likely to succeed, especially if proceeding to trial "would have exposed [the defendant] to significant additional punishment . . . ." 927 F.2d at 109. Again, there is nothing in the record to indicate that Kohler was intoxicated during the commission of this crime. Since it is uncertain under New York State law whether an intoxication defense would have been available to Kohler on the sodomy charge, and he has presented no evidence showing his ...

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