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United States District Court, S.D. New York

May 24, 2004.

RAYMOND MARQUEZ, Petitioner, - against - LEROY GRANT, Warden of OBCC (Rikers Island)

The opinion of the court was delivered by: RICHARD CASEY, District Judge


Petitioner Raymond Marquez seeks a writ of habeas corpus, challenging his state court conviction based on a plea of guilty to one count of Attempted Enterprise Corruption, a class C felony, and one count of Promoting Gambling in the First Degree. Petitioner was sentenced to five years probation.

By Report and Recommendation dated May 17, 2002 ("Report"), Magistrate Judge Dolinger recommended that the petition be denied. Petitioner timely submitted objections to the Report. For the reasons set forth below, the Court adopts the recommendation of Magistrate Judge Dolinger that the petition be denied.


  The factual background of this petition is set forth in detail in the Report and Recommendation and therefore is only briefly recounted here. On December 8, 1994, a New York County grand jury returned a superseding indictment charging Petitioner and two other defendants with one count of Enterprise Corruption; one count of Conspiracy in the Fifth Degree, sixty-eight counts each of Promoting Gambling in the First Degree; and seventy-six counts each of Possession of Gambling Records in the First Degree. The indictment also charged Marquez with six counts of Criminal Possession of a Weapon in the Third Degree; four counts in violation of N.Y. Penal Law, section 265.02(3); two counts in violation of N.Y. Penal Law, section 265.02(2); and one count of Offering a False Instrument for Filing in the First Degree. On January 26, 1995, a grand jury returned a separate three-count indictment against Marquez. This indictment charged petitioner with two counts of Promoting Gambling in the First Degree and one count of Possession of Gambling Records in the First Degree.

  On July 2, 1996, Marquez and his two codefendants entered into a plea agreement, whereby Marquez would plead guilty to one count of Attempted Enterprise Corruption in exchange for a five-year sentence "split" between ninety days of imprisonment and four years and nine months of probation. In addition, Marquez agreed to forfeit the sum of one million dollars to the State in installments payable from July 2, 1996 to March 1, 1997. He also agreed to relinquish claims to a variety of assets seized by the state, while the state agreed to release certain other property and to discontinue separate forfeiture proceedings that it had commenced with regard to those properties.

  The plea agreement contained additional provisions regarding the second indictment. To cover that set of charges, Marquez agreed to plead guilty to one count of Promoting Gambling in the First Degree, provided that the court would impose a term of conditional discharge that would run concurrent with the term of probation imposed for the first indictment.

  Following the execution of the plea agreement, the parties entered into a forfeiture stipulation with respect to certain items that had been seized by the State. The stipulation provided that the parties "`her[e]by agree to seek a determination by the Court regarding the nature and extent of such property pursuant to an in camera inspection by the Honorable F. Weissberg at a mutually convenient time for all parties and the Court, as soon as practicable.'" Report, at 5-6 (quoting stipulation).

  On August 28, 1996, Marquez pled guilty before Justice Weissberg, S.C.J., to the counts agreed upon in the July 2 plea agreement. In the course of that proceeding, Marquez confirmed his understanding and waiver of his trial rights, and acknowledged that he would receive a "split" term sentence, consisting of three months incarceration and four years and nine months of probation. At the end of the proceeding, Justice Weissberg observed, "If after reading the probation report I can't keep the promise that I have made to you, I will permit you to withdraw your pleas."

  Some time after the plea, the District Attorney advised Petitioner's counsel and Justice Weissberg that the split five-year sentence could not be imposed on Marquez because the contemplated 90-day term of imprisonment was not authorized for a C felony unless that conviction was for a narcotics offense. After learning that the period of incarceration was legally impermissible, the State agreed to drop its request for incarceration, and the court indicated that it would impose solely a five-year term of probation. On November 25, 1996, Petitioner filed a motion to withdraw his plea on the ground that the promised sentence was legally unavailable.

  By Decision and Order dated December 6, 1996, Justice Weissberg denied Marquez' motion to withdraw his plea. In doing so, he noted that the Petitioner had been "promised a `split sentence' of 90 days and a five-year term of probation," a conditional discharge on the second indictment, and that the split sentence had been agreed to because the prosecutor had insisted on a period of incarceration. Justice Weissberg denied Marquez's motion to withdraw his plea because the terms of probation to which the petitioner had agreed were all lawful and the court had discretion in the circumstances to alter the manner in which probation would be served.

  Marquez sought relief from Justice Weissberg's decision by filing an Article 78 petition in the Appellate Division, First Department, which was denied on February 11, 1997. Petitioner then applied for leave to appeal to the New York Court of Appeals, which denied his application on May 8, 1997.

  On April 15, 1997, Justice Weissberg sentenced Marquez to five years probation on the first indictment and a conditional discharge on the second. Although there remained some dispute as to the forfeited property, Justice Weissberg declined to resolve the issue, noting that such a dispute is amenable to adjudication in a civil forum. Marquez appealed his conviction and sentence to the Appellate Division, which denied his appeal on May 7, 1998. Marquez further appealed his conviction to the New York Court of Appeals, which also affirmed his conviction on August 13, 1998.

  Having exhausted his direct appeals, Marquez returned to the trial court on March 2, 1999, filing a motion to vacate the judgment on the basis that he had been denied effective assistance of trial counsel. The motion to vacate was denied on September 9, 1999. After the Appellate Division denied his appeal, Marquez filed a petition for habeas corpus in this Court on June 26, 2000.

  In his petition, Marquez argues the following reasons why his petition should be granted: (1) his counsel was ineffective for failing to make certain pretrial motions to suppress; (2) the trial court erred in not permitting him to withdraw his plea after it was determined that the agreed-upon sentence was legally impermissible; and (3) the state failed to adhere to the forfeiture stipulation.

  Magistrate Judge Dolinger issued a Report and Recommendation recommending that the Court deny the petition. Judge Dolinger first found that the change in Petitioner's sentence after the plea agreement was favorable to Petitioner and thus cannot serve as a basis for withdrawing his plea. Next, Judge Dolinger rejected Petitioner's argument that the state violated the forfeiture stipulation and further concluded that any actions concerning the forfeiture stipulation were not appropriate grounds for habeas relief. Finally, Judge Dolinger rejected Petitioner's claim of ineffective assistance of counsel because the suppression motions that Petitioner asserts his counsel should have filed would not have succeeded on the merits.


  A. Standard of Review

  A district court may adopt those portions of a Report and Recommendation to which the parties do not object and with which the court finds no clear error. See Pizzaro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). A court reviews de novo those portions of the Report to which a party has submitted timely objections. See Fed.R.Civ.P. 72(b).

  Petitioner objects to Magistrate Judge Dolinger's conclusion that the sentence imposed on Marquez and the denial of Marquez' motion to withdraw his plea did not violate his constitutional rights. Therefore, the Court will review that portion of the Report de novo; it will review the remainder of the Report for clear error.

  B. Violation of Plea Agreement

  The Petitioner argues that his sentence violated his constitutional rights because it differed from the sentence contemplated in the plea agreement. The sentence imposed by Justice Weissberg differs from the sentence contained in the plea agreement in that it imposed five years probation rather than a split sentence of three months incarceration followed by four years and nine months probation. Magistrate Judge Dolinger rejected Petitioner's claim that the sentence imposed was constitutionally impermissible. Judge Dolinger concluded that Marquez benefitted from the modification to the sentencing and was therefore not entitled to withdraw his plea.

  A violation of the terms of a plea agreement "can render a defendant's plea involuntary and thereby undermine the constitutional validity of a conviction based upon the plea." Paradiso v. United States, 689 F.2d 28, 31 (2d Cir. 1982). A "technical" violation of a plea agreement, however, does not violate a defendant's constitutional rights; nor does it entitle him to withdraw his plea. Id.

  The critical inquiry in such a case is whether the defendant received what he was "reasonably due in the circumstances." Santobello v. New York, 404 U.S. 257, 262 (1971); Paradiso, 689 F.2d at 30. In making this determination, "[t]he dispositive question . . . is what the parties to his plea agreement reasonably understood to be the terms of the agreement." Paradiso, 689 F.2d at 31 (quoting United States v. Arnett, 628 F.2d 1162, 1164(9th Cir. 1979)) (additional citations omitted).

  Here, Petitioner argues that he did not receive the benefit for which he bargained because his actual sentence differed from that which was contemplated under the plea agreement. According to Petitioner, the court "enhanced" the original sentence by adding three months probation. (Petitioner's Objections to Report and Recommendation, at 2) Petitioner fails to mention, however, that in doing so, the court dropped the three months incarceration included in the original sentence.

  To say the least, it is difficult to give credence to Petitioner's argument that a five year sentence of probation is more severe than a split five year sentence that includes three months of incarceration. Even Petitioner's own actions belie his argument. During negotiations following the discovery of the error in the plea agreement, Petitioner argued against incarceration, while the State argued for it. (See Filipakis Decl., Ex. F, at 2). As Judge Dolinger noted, Petitioner's argument that probation is more severe than incarceration is "absurd on its face." (Report, at 17).

  In the Court's view, the alteration in Petitioner's sentencing gave him more than the benefit of his bargain. Accordingly, his claim that the denial of his motion to withdraw his guilty plea violated his constitutional rights is denied.

  C. Remaining Issues

  The Report addresses the remainder of Petitioner's claims and concludes that they do not warrant granting the petition. Court has reviewed these portions of the Report, to which there is no objection, and finds no clear error. Therefore, the Court adopts the portions of the Report denying the remainder of Petitioner's claims.


  For the reasons set forth above, the Court finds that there are no valid grounds on which a writ of habeas corpus should issue. Accordingly, the petition is dismissed and the Clerk of the Court is directed to close the case.



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