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ALCOCK v. SPITZER

December 21, 2004.

GARVIN ALCOCK, Petitioner,
v.
ELIOT SPITZER, New York State Attorney General, Respondent.



The opinion of the court was delivered by: NINA GERSHON, District Judge

OPINION AND ORDER

Pro se petitioner Garvin Alcock applies to this court for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that he is being held in custody in violation of the constitution and laws of the United States pursuant to the judgment of a court of the State of New York. For the reasons set forth below, petitioner's application is denied.

PROCEDURAL HISTORY

  On May 11, 1999, petitioner pled guilty to attempted murder in the second degree, N.Y. Penal Law §§ 110.00/125.25[1], before the Honorable Abraham G. Gerges of the New York Supreme Court, Kings County, in connection with the shooting of a cab driver during a robbery. Judgment of conviction was entered on May 25, 1999 and petitioner was sentenced, principally, to seven and one-half years in prison.

  Petitioner subsequently moved, pursuant to N.Y. Crim. Proc. Law § 440.10(1)(h),*fn1 to vacate the judgment of conviction entered against him. He claimed that: (1) his plea was not knowing and voluntary because he was not informed that intent was a necessary element of the crime to which he pled guilty, and he did not allocute to intent; (2) his plea was not knowing and voluntary because he was not informed that he would be subject to a mandatory period of post-release supervision following his incarceration; (3) he was denied effective assistance of counsel at the plea proceedings because his attorney failed to inform him that intent is an element of attempted murder in the second degree; (4) he was denied effective assistance of counsel at the plea proceedings because his attorney failed to inform him that he would be subject to post-release supervision; and (5) he was denied effective assistance of counsel at the plea proceedings because his attorney failed to negotiate a reduced term of post-release supervision. By decision and order dated February 13, 2001, the court denied petitioner's Section 440.10 Motion. People v. Alcock, 188 Misc.2d 284 (N.Y. Sup. Ct., Kings County 2001) (Gerges, J.).

  Petitioner appealed both the judgment of conviction and the denial of his Section 440.10 motion to the Appellate Division, Second Department. Initially, he raised the issues concerning the knowing and voluntary nature of his plea, but later withdrew those claims and asserted only that his sentence was unduly harsh and excessive. The Appellate Division rejected that claim. People v. Alcock, 298 A.D.2d 596 (2d Dept. 2002). Petitioner then sought leave to appeal to the New York Court of Appeals, requesting permission to argue that his plea was not knowing and voluntary, as well as that his sentence was unduly harsh and excessive. Leave was denied. People v. Alcock, 99 N.Y.2d 625 (2003).

  Petitioner now brings a petition for a writ of habeas corpus before this court pursuant to 28 U.S.C. § 2254. The petition raises two claims: (1) that petitioner's plea was not knowing and voluntary because petitioner was never informed that he would be subject to post-release supervision; and (2) that petitioner's plea was not knowing and voluntary because petitioner was never informed that intent was an essential element of attempted murder in the second degree.

  FACTS

  On October 25, 1998, New York City cab driver Kevin Daniels was shot in the head and robbed of seventy five dollars and a cell phone while driving his cab in Brooklyn. In connection with this crime, petitioner was indicted, on December 9, 1998, on one count of attempted murder in the second degree, numerous counts of robbery in the first degree and other theft-related crimes, numerous counts of assault in the first degree and other assault-related crimes, and several counts of weapons possession. At his arraignment on January 1, 1999, he pled not guilty.

  Pursuant to a plea bargain agreement with the King's County District Attorney's Office (the "D.A."), petitioner moved to withdraw his not guilty plea on May 11, 1999, and to enter a plea of guilty to attempted murder in the second degree. During the allocution, petitioner admitted that, on or about October 25, 1998, he and two friends named Kurt and Booker hailed a cab in Brooklyn. At some point during the cab ride, he ordered the driver to pull over, pointed a gun at the driver, and told the driver to hand over his money. The cab driver resisted, and Kurt pulled out a second gun. In petitioner's words, "Kurt pulled out the gun, pointed it at him. So he stopped wrestling with me, now he start wrestling with Kurt and he tried to wrestle with him. He tried to open the door and wrestle with him too, and the gun went off. Then we ran from the car." Tr. of Plea Allocution at 8. Before accepting the plea, the court advised petitioner of the constitutional rights that he would waive by pleading, id. at 5, and confirmed that petitioner agreed to waive his right to appeal his conviction, id. at 9. The court informed petitioner that, in consequence of his plea, if he should be convicted of another felony within ten years, he may be subjected to a mandatory prison sentence, id. at 6; if he is not a citizen, his immigration status may be jeopardized, id. at 8-9; and he would be subject to a mandatory surcharge, id. at 11. The court promised to sentence petitioner to a determinate prison term of seven and one-half years. Id. at 2-3. The court did not inform petitioner that, after being released from prison, he would be required by statute to serve a mandatory period of post-release supervision.*fn2

  The court asked petitioner whether he had sufficient time to consult with his attorney before deciding to plead guilty. Petitioner answered affirmatively. Id. at 4. The court then asked whether petitioner was satisfied with the manner in which his lawyer represented him. Again, petitioner answered affirmatively. Id. at 5. Before concluding the proceedings, the court directed petitioner to "[t]ake out a moment, speak to your attorney and then tell me whether everything you've told the Court is true." Id. at 9. The court then stated that it was "satisfied that the defendant understands the nature of the charges and the nature of the plea, and the possible consequences of his plea. The defendant has discussed his legal rights with his attorney. The defendant understands he's waiving his constitutional rights and that the plea is voluntary and of his own free will." Id. at 10.

  In a sworn statement made in support of his Section 440.10 motion, petitioner asserted that his counsel "never explained to [him] that by pleading guilty [he] was admitting an intent to kill the cab driver," and "never explained to [him] what post-release supervision is, how it would affect [his] sentence or how long it is." Alcock Aff. ¶¶ 3-4. His counsel during the plea proceedings, however, an attorney with Brooklyn Defender Services, asserted in response to the Section 440.10 motion that it is his "unfailing practice to review and discuss with [his] clients the substance and elements of each of the charges contained in their respective indictments, before counseling them about whether to enter a plea of guilty," and that it has been his "unfailing practice, from the time of the enactment of Penal Law Section 70.45, to inform each of [his] clients who is offered a determinate sentence in exchange for a guilty plea of the consequences of post-release supervision." Kusevitsky Affirm. ¶¶ 4-5. Counsel further asserted that he had no reason to believe that he deviated from those practices in his representation of petitioner. Id. at ¶ 6.

  Following the entry of his plea, petitioner was sentenced, on May 25, 1999, to seven and one-half years in prison, as promised by the court. Tr. of Sentencing at 3. On November 8, 2000, petitioner, represented by appellate counsel, moved to vacate the judgment of conviction entered against him. The Section 440.10 motion was denied by Justice Gerges on February 13, 2001. The court held that petitioner's claims concerning the knowing and voluntary nature of the plea were statutorily barred by N.Y. Crim. Proc. Law § 440.10(2)(c), which requires a court to deny a motion to vacate a judgment when "[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to defendant's unjustifiable failure to take or perfect an appeal during the prescribed period. . . ." See Alcock, 188 Misc.2d at 286. The court nevertheless "express[ed] its opinion about the merits of the claim[s]." Id. Concerning petitioner's claim that he did not allocute to intent, the court asserted that it was permitted to infer petitioner's intent to kill the victim from petitioner's admission that he pointed a gun at the victim's head. Id. at 287. Concerning petitioner's claim that he was not advised about mandatory post-release supervision, the court conceded that its failure to inform a defendant about post-release supervision would constitute reversible error where, as here, the combined sentence of incarceration plus post-release supervision exceeds the maximum jail term of which the defendant was informed at the time of the plea. Id. at 288-89. The court noted that it would "in the future inform all defendants of post-release supervision." Id. at 289. The court also denied petitioner's ineffective assistance of counsel claims on procedural grounds.

  Petitioner then filed a notice of appeal from the judgment of conviction with the Appellate Division. By order dated August 8, 2001, petitioner was granted permission to appeal from the order denying his Section 440.10 Motion, and the appeals were consolidated. Initially, petitioner raised four claims in the consolidated appeal: (1) that his guilty plea violated due process because he was not informed that his sentence would include a mandatory period of post-release supervision; (2) that his guilty plea violated due process because the trial court failed to inquire further when his factual recital negated the requisite intent to kill; (3) that he was deprived of the effective assistance of counsel because his attorney failed to inform him that his sentence included a mandatory period of post-release supervision and that intent to kill was an element of the crime to which he was pleading guilty; and (4) that his sentence was unduly harsh and excessive. Before the appeal was decided, however, petitioner's appellate counsel sent a letter to the Appellate Division requesting that several points of petitioner's brief be withdrawn and that the court consider only the last point of his brief, namely, that the sentence imposed was unduly harsh and excessive. Counsel's letter stated that "Mr. Alcock has made a specific written request to have our office withdraw the first three points made in his brief. We apologize for any inconvenience this causes the court." Letter from ...


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