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BREA v. NEW YORK CITY PROBATION DEPARTMENT

March 3, 2004.

JOHNNY BREA, Petitioner, -v.- NEW YORK CITY PROBATION DEPARTMENT, Respondent


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Johnny Brea brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. On May 3, 2000, in the New York State Supreme Court, Bronx County, Brea pled guilty to one count of Grand Larceny in the Third Degree under N.Y. Penal Law § 155.35. On December 20, 2000, Brea was sentenced to probation for a period of five years and ordered to pay $23,145 (plus service fees) in restitution. Brea is currently on probation pursuant to that judgment. For the reasons stated below, Brea's petition should be denied.

I. BACKGROUND

  A. Indictment

  By indictment filed in 1999, Brea was charged with Grand Larceny in the Third Degree and Offering a False Instrument for Filing in the First Degree. Brief for Defendant-Appellant, dated May 2002 ("Pet. App. Div. Brief") (annexed as Ex. 1 to Affidavit of Hae Jin Liu in Opposition to Petition for Habeas Corpus, filed December 1, 2003 (Docket #6) ("Liu Aff.")), at 2. The indictment alleged that, between November 9, 1995 and December 15, 1997, Brea stole approximately $24,000 in public assistance, food stamps, and medical assistance from the Page 2 Human Resources Administration by misstating his employment status in his application for benefits. Id.

  B. The Plea Hearing

  On May 3, 2000, Brea's trial counsel, Andrew Freifeld, informed the court that Brea wished to plead guilty to Grand Larceny in the Third Degree. (5/3/00 Tr. 3). In exchange for his plea, Brea understood that he would be sentenced to "a period of probation" and be required to pay an undetermined amount of restitution to be assessed at a subsequent hearing. (5/3/00 Tr. 3-4).

  The following colloquy took place between the trial judge and Brea:
The Court: Your attorney tells me you want to withdraw your not guilty plea and plead guilty to grand larceny in the third degree, a class D felony, to satisfy the charges against you on this indictment; is that true?
[Brea]: That's correct.
The Court: Has anybody threatened you to make you do this?
[Brea]: No.
(5/3/00 Tr. 5). The judge then went on to explain that Brea would be given the promised sentence of probation and payment of restitution only if he came to court when requested, was not arrested in the interim, and signed a confession of judgment. (5/3/00 Tr. 5-6). The court emphasized:
The Court: Do you understand that if you don't keep one of those promises to me, if you fail to come to court of if you get arrested, I don't have to keep my promise [of probation] to you, and I am likely to send you to jail. Do you understand that?
[Brea]: Yes, your Honor.
  The Court: Has anybody promised you anything else? Page 3

  [Brea]: No.

  . . . .

 
The Court:. . . . If I accept the guilty plea today, and you say next time I would like to take my guilty plea back, I'm not going to let you do it.
[Brea]: Okay.
The Court: If you don't keep one of your promises to me and I say I am going to send you to jail because you violated one of those promises, and you say, I want to take my guilty plea back, then I am not going to let you do that.
[Brea]: Yes, I understand.
(5/3/00 Tr. 6-7).
  The following exchange also took place:
The Court:. . . . The gist of this charge is that you were gainfully employed, that you were working, and that you lied to the Department of Social Services about working so that you could continue to receive benefits; is that correct?
[Brea]: That's correct.
The Court: Did that happen?
[Brea]: Yes, sir.
. . .
The Court: . . . [I]n two years you collected more than three thousand dollars?
[Brea]: That's correct.
The Court: Basically you stole more than three thousand dollars?
[Brea]: Yeah, okay. Yes.
. . .
  [Brea]: Your Honor, let me — to the City I stole money. It's interesting that to the State I didn't. So, someone — Page 4
 
The Court: If you are innocent here, if you are innocent.
[Brea]: Yes —
The Court: — I am not going to accept this plea.
[Brea]: No, I am going to accept the plea of guilty, because I am tired.
. . .
The Court:. . . . If you don't want to plead guilty, if you did . . . nothing wrong — let me stop you. If you did nothing wrong in this case, I don't want [you to] plead guilty. I want you to take your case to the jury and explain it —
[Brea]: No, I am going to plead guilty.
The Court: — and have the People prove your guilt beyond a reasonable doubt. You can raise whatever defense you can.
[Brea]: I am going to plead guilty, your Honor, because I am tired.
The Court: I am not going to accept a guilty plea —
[Brea]: I am guilty.
The Court: I am not going to accept the plea because you are tired. I am going to accept the plea because you stole this money.
[Brea]: Yes, I stole.
The Court: Did you steal it?
[Brea]: Yes, sir.
(5/3/00 Tr. 9-14).

  The court then asked Brea whether he understood that pleading guilty to a felony "could subject [him] to deportation" if he was not a United States citizen. (5/3/00 Tr. 17). Brea responded, "That's correct." (5/3/00 Tr. 17). Brea then stated that Freifeld had explained to him Page 5 that the judge was going to sentence him to five years' probation, which Brea felt was "a little bit very excessive I think." (5/3/00 Tr. 17). The court responded, "I will give you six months in jail instead." (5/3/00 Tr. 17). Brea responded, "No, I don't want to go to prison. I have a job, your Honor. I can't." (5/3/00 Tr. 18).

  The plea hearing concluded with the following:
The Court: Do you want to enter this guilty plea?
[Brea]: Yes, your Honor.
. . .
The Court Clerk: [Brea], do you now withdraw your previously entered plea of not guilty and now plead guilty to the crime of grand larceny in the third degree under indictment 5406 of `99, that plea to cover the entire indictment?
[Brea]: Yes.
(5/3/00 Tr. 19-20).

  C. Plea Through Sentencing

  On August 1, 2000, Freifeld asked to be relieved as Brea's attorney because Brea allegedly believed that he had been coerced by Freifeld, among others, to plead guilty and because Brea wished to withdraw his guilty plea. (8/1/00 Tr. 2-3). The court indicated that it would ask for new assignment of counsel. (8/1/00 Tr. 3). On August 4, 2000, Bruce Klein appeared as Brea's new attorney. (8/4/00 Tr. 1). The case was adjourned so that Brea could consider whether he wished to withdraw his guilty plea. (8/4/00 Tr. 3). At his next court appearance, on October 17, 2000, Brea stated that he did not want to withdraw his plea. (10/17/00 Tr. 3-4). The case was adjourned for a restitution hearing. (10/17/00 Tr. 4). Page 6

  At the restitution hearing, which began on November 17, 2000, Klein indicated that Brea was moving to withdraw his guilty plea. (11/17/00 Tr. 2-3). Klein argued that, while Brea had been informed that a felony conviction could subject him to deportation, he had not been informed prior to his plea that his conviction was an automatic ground for deportation. (11/17/00 Tr. 2-3). This was the only basis articulated in support of Brea's motion. (See 11/17/00 Tr. 2-4). The court denied the motion. (11/17/00 Tr. 3).

  At the sentencing hearing on December 20, 2000, Brea expressed reservations with signing an affidavit of confession of judgment. (12/20/00 Tr. 13-15). The court indicated that Brea need not sign the affidavit but that, if he did not, the court would sentence him to a term of imprisonment. (12/20/00 Tr. 14-15). Klein stated that Brea felt that "he [was] being forced to sign the confession of judgment." (12/20/00 Tr. 16). The court indicated that "Brea may do as he wishes." (12/20/00 Tr. 16). Brea signed the affidavit and swore to its accuracy. (12/20/00 Tr. 17). The following discussion then ensued:
The Court:. . . . Mr. Brea do you want to say anything?
. . . .
[Brea]: If, yes. I was forced to sign those documents.
The Court: Do you want to take them back?
[Brea]: No, no, that's it. I was forced to.
The Court: You may have them back and I will tear them up if you wish. Would you like me to have them torn up?
[Brea]: Yeah, but you gave me no choice, then you going to throw me in jail.
  The Court: Would you like me to tear them up; yes or no? Page 7

  [Klein]: I think the answer would ...


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