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MORALES v. NEW YORK

December 4, 1995

ROBERT MORALES, Petitioner, against PEOPLE OF THE STATE OF NEW YORK, Respondent.


The opinion of the court was delivered by: PECK

REPORT AND RECOMMENDATION

 TO THE HONORABLE LAWRENCE M. MCKENNA, United States District Judge:

 Robert Morales petitions for a writ of habeas corpus, alleging that his conviction, obtained by his plea of guilty, was unlawfully induced because the plea agreement was ambiguous as to whether he would be able to withdraw the plea should he breach the plea agreement. Morales pled to a Class C felony, but was told that if he did not commit other crimes and appeared for sentencing, he would be allowed to withdraw his plea and plead to a Class D felony. For the reasons set forth below, the plea agreement was clear and unambiguous, and accordingly I recommend that Morales's habeas petition be denied.

 FACTS

 Morales's Arrest

 On June 1, 1984, petitioner Robert Morales was arrested after he posed as a building inspector in order to gain entry to an apartment, where he stole jewelry. (District Attorney's Memorandum of Law to the Appellate Division, dated 1/22/88, at 1-2, 3-4.) The maid discovered Morales, who fled, but he was chased and apprehended. (Id. at 4.) When the police arrived, the maid identified Morales, and the stolen jewelry was found in his pockets. (Id.)

 Morales's Guilty Plea and Sentencing

 Morales was charged with burglary in the second degree and criminal possession of stolen property in the third degree. (See Transcript of Morales's Guilty Plea Before Justice Altman on 6/21/84 ["Plea Tr."] at 1-2.) On June 21, 1984, Morales pled guilty to burglary in the second degree, a Class C felony, to cover all counts in the indictment. (Id. at 3.) Morales confirmed that his plea was voluntary, and not based on any threats. (Id.) He also confirmed that he understood that by pleading guilty, he gave up his right to a trial by jury, and consequently his rights to cross-examine and call witnesses, and to either testify on his own behalf or remain silent. (Id. at 4.) Morales then admitted that on July 1, 1994, he knowingly entered and remained unlawfully in an apartment and stole jewelry from the premises. (Id. at 4-5.)

 Justice Altman informed Morales that if he pled guilty, he could be sentenced as a predicate felon to a term of seven and a half to fifteen years. (Id. at 5.) The court established Morales as a predicate felon by verifying that Morales waived his right to contest a prior burglary conviction. (Id. at 7-8.).

 Based on representations made by Morales's attorney regarding Morale's perfect record of appearances in a prior case, Judge Altman released Morales pending sentence, stating:

 
THE COURT: Now, if you come back when you are supposed to, and you go to Probation Department, and you do not commit any other crimes, then you will be permitted to withdraw this plea to the "C" and plead guilty to a Class "D" felony in return for a sentence of two and a half to five years.
 
DEFENDANT: Yes, sir.
 
THE COURT: However, if you violate any of these conditions that [sic; then] you would receive seven and a half to fifteen, and I would not have any qualms about giving it to you.
 
DEFENDANT: Yes, sir.

 (Id. at 6-7.) Sentencing was scheduled for August 3, and Morales was released on parole pending ...


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