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CHARNOCK v. HERBERT

July 6, 1999

NORMAN J. CHARNOCK, III, 95-B-0544, PETITIONER,
v.
V. HERBERT, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Elfvin, District Judge.

ORDER

ORDERED that Judge Foschio's Report and Recommendation is confirmed in its entirety and the Petition for a writ of habeas corpus is denied and this case shall be closed.

REPORT and RECOMMENDATION

JURISDICTION

Petitioner, Norman J. Charnock III, initiated this action requesting relief under 28 U.S.C. § 2254 on March 20, 1997. The matter was referred to the undersigned by the Hon. John T. Elfvin, on June 3, 1997, for all proceedings necessary to reach a determination in this action.

BACKGROUND

On May 24, 1984, Petitioner Norman J. Charnock III ("Petitioner") ("Charnock") was arraigned in Lackawanna City Court before City Court Justice Norman F. Walawender on charges of Grand Larceny in the Second Degree pursuant to § 155.35 of the New York Penal Law, and Possession of Stolen Property in the Third Degree pursuant to § 165.50 of the New York Penal Law. Specifically, Petitioner was charged with the theft of a vehicle from an automobile dealership on Abbott Road in Lackawanna, New York, and theft of a license plate from another vehicle located at the premises, occurring at approximately 10:55 P.M. on May 24, 1984.

On June 11, 1984, Petitioner waived a felony hearing on the above charges, and requested that the charges be brought before a Grand Jury. While exiting court following adjournment on this occasion, Petitioner was arrested and immediately arraigned on the charge of Unlawful Imprisonment in the First Degree pursuant to § 135.10 of the New York Penal Law, as the result of an incident which allegedly occurred on May 22, 1984. Specifically, Petitioner was charged by felony complaint filed on June 11, 1984, with grabbing Robyn Norris, a 16 year old female, pulling her into a vehicle and driving off, against Norris' will. Petitioner then allegedly restrained Norris in his residence on Bell Street in Lackawanna, New York from May 22, 1984 until she was able to escape on May 24, 1984.

This matter, including the pending charges of Grand Larceny in the Second Degree and Criminal Possession of Stolen Property in the Third Degree, was then adjourned until June 26, 1984. On June 26, 1984, Petitioner appeared and waived his right to a preliminary hearing as to all charges, and the charges were transferred to the grand jury for possible indictment. However, Petitioner later elected to waive indictment and proceed by Superior Court Information, pursuant to New York Criminal Procedure Law § 195.10.

On September 28, 1984, Petitioner's waiver of the indictment was approved by New York Supreme Court Justice Penny M. Wolfgang, and Petitioner, accompanied by his recently appointed attorney, Lillian Anderson,*fn1 pled guilty to a Superior Court Information ("the Information") charging him with Criminal Possession of a Forged Instrument, in satisfaction of all remaining charges, including the stolen property, theft and unlawful imprisonment charges. The Information charged Petitioner with two counts of Criminal Possession of a Forged Instrument in the Second Degree pursuant to § 170.25 of the New York Penal Law, based on two occasions in which the Petitioner signed his father's name to bank checks belonging to his father's account, on June 8, 1984 and June 20, 1984. The larceny, stolen property, and unlawful imprisonment charges were then dismissed. Petitioner was incarcerated in the Erie County Holding Center until his bail was posted on June 27, 1984.

On March 20, 1985, Justice Wolfgang sentenced Petitioner to two to six years imprisonment following his guilty plea to the forged instrument charge, to run concurrently with a federal sentence which Petitioner was then serving. Defendant did not appeal his state conviction or sentence.

Petitioner moved, on August 11, 1995, for an order pursuant to N YCrim.Proc. Law § 440.10 vacating the court's judgment, arguing that, based on information received by the Petitioner on June 1, 1995 from the Orchard Park Police Department, demonstrating that, at the time of the alleged unlawful imprisonment of Ms. Norris, he was incarcerated in Lackawanna City Jail, and therefore he had been unlawfully arrested and convicted of unlawful imprisonment.

According to Petitioner, the City of Lackawanna Police Department "used fraud and malice" in arresting him on June 11, 1984 for unlawful imprisonment, as a proper investigation would have revealed that Petitioner was incarcerated at the time of the alleged incident. Affidavit of Norman J. Charnock III in Support of Motion to Vacate, see Exhibit A to Petition ("Petitioner's Affidavit"). Additionally, Petitioner claimed (1) his plea of guilty to the charge of unlawful imprisonment was unlawfully obtained; (2) Assistant Erie County District Attorney Thomas J. Eoannou failed to disclose that the Petitioner was incarcerated on another charge at the time of the alleged offense, and thereby fraudulently obtained Petitioner's arrest and conviction for this charge; and (3) Petitioner's assigned counsel wrongfully instructed him, immediately prior to his plea of guilty in satisfaction of all charges, that despite pleading guilty, the record would reflect that Petitioner was not guilty of unlawful imprisonment.

Petitioner also requested an evidentiary hearing, in which the testimony of the following individuals could be obtained: (1) Robyn Norris; (2) Lackawanna City Police Detectives Rozwood and Gelyon; (3) Orchard Park Town Police Officers O'Connor and Stuhr; (4) the owner of the automobile dealership, Michael Zuchowski; (5) the owner of the stolen license plate, Mark E. Williams; and (6) Lackawanna City Police Officers Joel Budimirovich and Mark Thomas.

In an order filed September 5, 1995, Justice Wolfgang denied Petitioner's motion to vacate the conviction and conduct an evidentiary hearing, determining that Petitioner sought vacatur of a judgment that was never entered. Additionally, Justice Wolfgang determined that the Petitioner's allegations were contradicted by the record before the court, and therefore an evidentiary hearing was unnecessary.

On September 11, 1995, Petitioner appealed to the Appellate Division, New York Supreme Court, Fourth Department, reiterating the grounds relied upon in his motion to vacate. Petitioner also argued that his Sixth Amendment right to effective assistance of counsel, Eighth Amendment right to be free of cruel and unusual punishment, and Fourteenth Amendment right to due process had been violated as Petitioner pled guilty to unlawful imprisonment despite the existence of evidence demonstrating that he was not guilty. Additionally, Petitioner alleged that the lower court erred in not conducting an evidentiary hearing. Affidavit of Norman J. Charnock III in Support of Motion for Leave to Appeal, see Exhibit A to Petition.

On December 13, 1995, the Appellate Division denied Petitioner's request for permission to appeal, determining that no reviewable question of law or fact existed. Order Denying Leave to Appeal, Exhibit A to Petition.*fn2 Petitioner applied to the court for reconsideration of the motion on December 26, 1995, filing an addendum to accompany this application on February 5, 1996, in which Petitioner repeated his arguments on appeal, and also argued that review of the lower court's decision was warranted, as the court failed to set forth the required findings of fact and conclusions of law. The Appellate Division denied Petitioner's request for reconsideration on February 5, 1996. See Exhibit A to Petition.

Petitioner then applied for leave to appeal to the New York Court of Appeals in March 1996, arguing that the judgment of the trial court should be vacated, as he should not have been charged with unlawful imprisonment, and his conviction for unlawful imprisonment was based on evidence known to be false by the prosecutor and court. Petitioner's Notice of Application to the New York Court of Appeals, see Exhibit A to Petition. The Honorable Vito J. Titone, Associate Judge of the New York Court of Appeals, denied Petitioner's request for leave to appeal on March 25, 1996, finding that the Appellate Division's February 5, 1996 order denying Petitioner's request for reconsideration was not an appealable order pursuant to N.Y.Crim. Proc.Law § 450.90(1). People v. Charnock, 666 N.E.2d 1065 (N.Y. 1996). Petitioner then requested reconsideration of his motion, arguing that the prosecutor had engaged in misconduct by not providing transcripts of the Petitioner's ...


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