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August 3, 2004.

GERARDO FALAS, Petitioner,
WILLIAM PHILLIPS, Acting Superintendent, Green Haven Correctional Facility, Respondent.

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


Gerardo Falas, proceeding pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a plea of guilty to one count of Criminal Possession of a Weapon in the Second Degree in New York State Supreme Court, New York County, Falas was sentenced as a second violent felony offender to ten years in state prison. Falas is currently incarcerated at the Green Haven Correctional Facility in Stormville, New York pursuant to that judgment. For the following reasons, Falas's petition should be denied.


  A. Suppression Hearing

  On June 7, 1999, a pretrial hearing was held to determine the admissibility of certain statements Falas made to the police as well as the admissibility of certain items recovered from Falas's person and from the car in which he was sitting when arrested.

  Officer John Crawford and Officer Jessie Bonaparte both testified that on November 6, 1998 at approximately 10:25 p.m., they were on patrol separately and received a radio transmission concerning four males with guns in a Chevrolet Caprice with tinted windows. (Crawford: Hr'g Tr. 5-6, 41; Bonaparte: Hr'g Tr. 62-63, 69). According to the transmission, the car was located on West 109th Street between Central Park West and Manhattan Avenue. (Crawford: Hr'g Tr. 6, 40-41; Bonaparte: Hr'g Tr. 63, 69). Officer Crawford was the first officer to respond to the scene and, after inquiring into a Caprice without tinted windows parked on the north side of the street, his attention shifted to a Caprice with tinted windows parked on the south side of the street. (Crawford: Hr'g Tr. 7-8, 39-45). He observed that the car looked like an unmarked police vehicle because of the type of vehicle and the fact that it had an antenna on the trunk. (Crawford: Hr'g Tr. 8-9). There were approximately 12 police officers on the scene at this point. (Crawford: Hr'g Tr. 47, 60; Bonaparte: Tr. 64-65).

  Officer Bonaparte was first to approach the Caprice with tinted windows and as he approached, he saw a man slumping down in the front passenger seat and three other men inside the car. (Bonaparte: Hr'g Tr. 65-66, 73-75; Crawford: Hr'g Tr. 9-10). From about five feet away, he saw that the man in the front passenger seat was holding the back of a black gun which he was partially hiding in a red bandana. (Bonaparte: Hr'g Tr. 66, 75-80). The man put the gun under the seat and Officer Bonaparte opened the door and pulled him out of the car. (Bonaparte: Hr'g Tr. 67-68, 83; Crawford: Hr'g Tr. 9-10, 46-47, 49-50). Both officers identified this individual as Falas in court. (Bonaparte: Hr'g Tr. 67; Crawford: Hr'g Tr. 12). Officer Bonaparte then went into the car, grabbed the gun from under the seat, and yelled "gun." (Bonaparte: Hr'g Tr. 68, 83; Crawford: Hr'g Tr. 13, 18-19, 50). Three other individuals were removed from the car. (Crawford: Hr'g Tr. 13).

  Falas was wearing a two-way radio taped with duct tape to his chest, a second set of clothing, and a police badge around his neck. (Crawford: Hr'g Tr. 14-15). Flex cuffs were also recovered from the ground. (Crawford: Hr'g Tr. 14). In addition, a .380 semiautomatic pistol was recovered from directly behind the front passenger seat of the car and a .38 revolver from behind the driver's seat. (Crawford: Hr'g Tr. 15-16). A nine-millimeter handgun with a laser scope attached to it was also recovered from a trap inside the glove compartment. (Crawford: Hr'g Tr. 17). All three guns were loaded. (Crawford: Hr'g Tr. 17). A siren control box was also found in the glove compartment and a red bubble light was found between the two front seats. (Crawford: Hr'g Tr. 18). Two cell phones, a knife, plastic handcuffs, a second radio, and other police badges were also found inside the car. (Crawford: Hr'g Tr. 19-22). A set of license plates, two flex cuffs, plastic handcuffs, and two bags marked as ammonium nitrate were found in the trunk. (Crawford: Hr'g Tr. 23-24).

  At approximately 12:20 a.m. that night, Falas was read his Miranda rights and he indicated that he had nothing to say. (Crawford: Hr'g Tr. 36-38, 57). Around 10:30 a.m. the next day, Detective Raul Maisonet again read Falas his Miranda rights and Falas again refused to speak. (Maisonet: Hr'g Tr. 88-91). At approximately 7 p.m., Officer Crawford showed Falas a photograph of the four guns and he identified a .380 with a black handle as his gun. (Crawford: Hr'g Tr. 33-36, 57).

  The defense presented no witnesses.

  The court denied the application to suppress in all respects in an oral ruling, except that it reserved decision as to the items recovered from the trunk of the car. (Hr'g Tr. 116-17). Thereafter, in a written decision, the court credited the testimony of the police officers and found that based on the radio transmission, the police had reasonable grounds to stop and investigate the car. Decision, dated July 1, 1999 ("Hr'g Decision") (reproduced as Ex. K to Declaration in Opposition to Petition for a Writ of Habeas Corpus, filed January 9, 2004 (Docket #7) ("Resp. Opp.")), at 2, 7. Further, the court held that probable cause existed to arrest the occupants of the car once Officer Bonaparte observed Falas in possession of a gun. Id. at 7. The search of the occupants and of the interior of the car was incident to this valid arrest and the search of the trunk was justified because the police had reasonable grounds to believe that additional weapons may have been hidden in the trunk. Id. The court also found that Falas's statements to the police were made after a knowing and voluntary waiver of his Miranda rights. Id.

  B. Plea

  On February 1, 2000, voir dire in Falas's trial had already begun and ten jurors had been chosen. (See Plea: Tr. 2). The parties had not been scheduled to appear in court on that day but Falas had indicated that he was interested in accepting a plea and his counsel had asked to appear before the judge. (See Plea: Tr. 2). The judge noted that the indictment against Falas charged four counts of Criminal Possession of a Weapon in the Second Degree (one count for each of the four weapons found in the car), four counts of Criminal Possession of a Weapon in the Third Degree (for the same four weapons), and one count of Criminal Impersonation in the First Degree. (Plea: Tr. 3).*fn1

  Defense counsel indicated that Falas was prepared to go forward with a plea to Criminal Possession of a Weapon in the Second Degree with regard to the Titan 380, which he had "indicated was the weapon he was to use on that evening." (Plea: Tr. 5-7). The prosecutor stated that he would be seeking a sentence of 15 years, which was less than the sentence Falas faced if he went forward with the trial. (Plea: Tr. 3). Defense counsel indicated that Falas was prepared to enter a plea with a sentence of eight years. (Plea: Tr. 4). In support of this position, defense counsel pointed out that the driver of the car had received a sentence of five years as a prior felony offender. (Plea: Tr. 3-4). The court said that it would "consider" an eight-year sentence but "[was] not going to promise it" and observed that four months earlier Falas had been offered and rejected such a plea. (Plea: Tr. 4, 7). Defense counsel stated that his client wished to go forward. (Plea: Tr. 4). The court confirmed that Falas was prepared to admit under oath that there were two other operable handguns in the car. (Plea: Tr. 7). A copy of the violent predicate statement was provided to the court. (Plea: Tr. 7).

  After being placed under oath, Falas then stated that he wished to plead guilty to Criminal Possession of a Weapon in the Second Degree in full satisfaction of the indictment against him. (Plea: Tr. 8). He stated that he was doing so voluntarily and of his own free will after speaking with his attorney. (Plea: Tr. 8). Falas then admitted that on November 6, 1998, on West 109th Street, he possessed a loaded, operable .380 caliber firearm inside a vehicle and that he intended to use that firearm unlawfully against another. (Plea: Tr. 8-9). He confirmed that in the car there were three other people and two additional loaded, operable firearms that were going to be used unlawfully and a third firearm in a trap inside the car. (Plea: Tr. 9). Falas also stated that he understood that the court would consider a sentence of eight years but that the judge was not making a promise as to his sentence. (Plea: Tr. 9-10). Falas also stated that he understood that he was not going to be allowed to withdraw his plea on the date of sentencing. (Plea: Tr. 10). Falas then indicated that he understood that in entering a plea, he was waiving his right to a jury trial, his right to confront and cross-examine witnesses, and the right to remain silent. (Plea: Tr. 11). He also stated that nobody had forced him to plead guilty or made any promises in order to get him to plead guilty. (Plea: Tr. 11). The plea was then accepted. (Plea: Tr. 11-12).

  The court then reviewed Falas's predicate felony statement, which stated that in 1992 Falas was convicted of Attempted Criminal Possession of a Weapon in the Second Degree, a violent felony. (Plea: Tr. 12). Falas admitted that he was convicted of that crime and he stated that he did not wish to challenge the constitutionality of that conviction. (Plea: Tr. 12-13). Accordingly, the court found Falas to be a second violent felony offender. (Plea: Tr. 13).

  C. Sentencing

  On February 29, 2000, Falas appeared for sentencing. The prosecutor requested that the proposed eight-year sentence be rejected and Falas be sentenced to 15 years in prison. (Sentencing: Tr. 2-6). The prosecutor argued that Falas's criminal history — which included an incident in 1989 in which Falas discharged a firearm in the direction of another person and an assault committed in 1992 — along with the fact that he absconded from a work release program, and the facts underlying the instant conviction, warranted a 15-year sentence. (Sentencing: Tr. 3-6). In response, defense counsel pointed out that the driver of the car, who had a longer criminal history than Falas, received a seven-year sentence. (Sentencing: Tr. 6-7).*fn2 Because of this and because Falas had admitted his guilt, defense counsel urged that he receive an eight-year sentence. (Sentencing: Tr. 7).

  Falas was then given an opportunity to address the court. (Sentencing: Tr. 7). He stated:
I'm innocent. I would like to withdraw my plea of guilty which was entered because I was coerced, tricked, and intimidated into taking it by my lawyer and the District Attorney.
My decision was not intelligent or a knowing one considering that I had not received any paperwork informing me of the charges against me until we were actually picking jurors.
And I never had an opportunity to discuss the charges or the defenses with my attorney, and I had no idea what I actually was being charged with.
Furthermore, I was tricked into pleading guilty to the highest charge in the indictment and without a promised sentence.
My lawyer originally told me that I would be cop[p]ing to a weapons possession in the third degree which carries 3 to 5 years, a determinative sentence.
She also said that I'd have to cooperate fully with what the Court asked of me.
Instead, the Court has me pleading to criminal possession of a weapon in the second degree with intent to do harm to another unlawfully, a charge which the facts of the case would probably fail to establish even at trial, I believe.
The presentence report should reflect discrepancies and I have a motion to withdraw my plea for the Court with me which I'll ask the Court to accept and my attorney to adopt.
(Sentencing Tr. 7-9). The prosecutor then responded that he would be opposed to Falas withdrawing his plea and observed that defense counsel was a fine attorney. (Sentencing: Tr. 9). The court added that Falas's previous attorney, who represented him at the hearing, was also a fine attorney. (Sentencing: Tr. 9). The prosecutor noted for the record that Falas was scheduled to go to trial in the Bronx the following Monday in a robbery case involving the same individuals Falas admitted being with in the instant case. (Sentencing: Tr. 10).

  Before sentencing Falas, the court stated, "Mr. Falas clearly is lying to me now which is . . . something that certainly I have to take into consideration." (Sentencing: Tr. 10-11). The court was "shocked" and "amaze[d]" that Falas accused counsel of pressuring him and tried to withdraw his plea after swearing under oath that he understood his rights, that he was not pressured or coerced, and that he was guilty. (Sentencing: Tr. 11-12). The court took into account Falas's prior record and the circumstances of this crime — particularly the fact that the four men had all the equipment to impersonate police officers with them in the car — in determining the sentence. (Sentencing: Tr. 12-13). Falas was sentenced to ten years in prison. (Sentencing: Tr. 13).

  D. Written Motion to Withdraw Plea

  As noted in the colloquy at Falas's sentencing, Falas had also prepared a written motion to withdraw his guilty plea. See Sentencing: Tr. 9; Affidavit in Support of Motion to Withdraw Plea, dated February 26, 2000 ("Motion to Withdraw") (reproduced as Ex. L to Resp. Opp.). In it, Falas claimed that he entered a guilty plea because his counsel insisted that he do so and because he lost the suppression hearing, not because he was actually guilty. Id. at 1. He further contended that his attorney had "guaranteed" him that he would lose at trial and that he would be sentenced to consecutive sentences for each of the weapons found in the vehicle. Id. at 2. Falas also asserted that he was forced to begin the trial without receiving any Brady, Rosario, or discovery material. Id. In addition, he mentioned that his first attorney had refused to reargue the suppression motion and the court had rejected a pro se motion to reargue. Id. at 8.

  In a written decision, the sentencing court denied Falas's motion to withdraw his plea, finding that his written allegations were the same as those presented orally which the court had previously rejected. See Brief for Respondent, dated April 2001 (reproduced as Ex. B to Resp. Opp.), at 16.*fn3

  E. Motion to Vacate

  On December 12, 2000, Falas submitted a pro se motion to vacate his conviction under N.Y. Crim. Proc. Law ("CPL") § 440. See Notice of Motion to Vacate Judgement and Set Aside Sentence Pursuant to C.P.L. 440.30, dated December 12, 2000 ("440 Motion") (reproduced as Ex. C to Resp. Opp.). He argued that (1) the People had failed to show that the information received from the 911 call was sufficiently reliable to justify the actions taken in stopping the car, id. at 8-9; (2) the suppression motion should have been granted because Officer Bonaparte's testimony that he could see the butt of a gun through the tinted window as he approached the car was incredible, id. at 9-11; (3) defense counsel divulged to the prosecutor that Falas was going to maintain that he was seated in the rear of the car rather than in the front, id. at 11-13; (4) Falas's first attorney was ineffective, id. at 13-14; (5) Falas pled guilty only because his second attorney told him that "the Appellate Division ...

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