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SMITH v. BURGE

January 12, 2005.

CRAIG SMITH, Petitioner,
v.
JOHN BURGE, Respondent.



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

The petitioner Craig Smith ("Smith"), an inmate incarcerated at Auburn Correctional Facility in Auburn, New York, proceeding here pro se, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent John Burge, Superintendent of Auburn Correctional Facility (the "Respondent"), has opposed the petition. For the reasons set forth below, the petition is denied.

  Prior Proceedings

  Following Smith's guilty pleas, two separate judgment of conviction were entered on January 27, 1999 in New York State Supreme Court, New York County, convicting Smith of seven counts of Burglary in the Second Degree under New York Penal Law ("Penal Law") §§ 140.25(1)(b) and 140.25(1)(c), one count of Assault in the Second Degree under Penal Law § 120.05(6), and one count of Burglary in the Third Degree under Penal Law § 140.20. As a consequence of these convictions, Smith was sentenced as a second felony offender to seven concurrent terms of 8 years as to each of the second-degree burglary counts and a concurrent term of 7 years as to the assault count. In addition, Smith was sentenced to a term of 2 to 4 years for the third-degree burglary charge, to run consecutive to the other sentences. By an order and decision dated March 8, 2000, the Honorable Michael Obus denied Smith's motion brought pursuant to New York Criminal Procedure Law ("CPL") § 440.10 to vacate his conviction under the latter of the two underlying indictments. Smith subsequently sought leave from the Appellate Division, First Department, to appeal from the denial of his § 440.10 motion. On June 16, 2000, the Honorable Ernst H. Rosenberger granted Smith permission to appeal from the denial of his § 440.10 motion, and consolidated that appeal with Smith's direct appeal from his conviction. The Appellate Division thereafter affirmed Smith's conviction in a decision issued on May 22, 2003. See People v. Smith, 305 A.D.2d 291, 758 N.Y.S.2d 812 (N.Y.App. Div. 1st Dep't 2003). Leave to appeal to the New York State Court of Appeals was denied on July 22, 2003, see People v. Smith, 100 N.Y.2d 587, 764 N.Y.S.2d 398, 796 N.E.2d 490 (N.Y. 2003), and reconsideration was denied on August 27, 2003. See People v. Smith, 100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359 (N.Y. 2003).

  The instant petition, dated September 15, 2003, was filed on October 31, 2003 and Smith moved for discovery pursuant to Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts on or about December 10, 2003.*fn1 Respondent filed opposition to the petition on March 22, 2004, and Smith was thereafter granted leave to file a reply. Upon the receipt of a traverse and various supplements to the traverse submitted by Smith, this matter was deemed fully submitted on August 19, 2004.

  The Underlying Indictments

  On October 10, 1997, Smith entered 230 Park Avenue, left identification with a security guard under the pretense that he was a messenger, and proceeded to a law office on the 18th floor of the building. Inside, while attorney John Sarcone ("Sarcone") was away from his desk, Smith took Sarcone's law school ring and wallet, the latter containing five credit cards. When Sarcone returned and discovered Smith, he became suspicious when Smith claimed to be a messenger. Sarcone asked Smith to wait for security, at which point Smith ran, and Sarcone's wallet was later found in a stairwell. Smith was eventually traced through the identification he had left with building security and was apprehended on November 11, 1997. Sarcone identified Smith in a lineup. Smith confessed to police that he had been in the building and had been confronted by Sarcone but said nothing about taking any of Sarcone's property. By Indictment Number 9939/97, filed on November 24, 1997, a New York County Grand Jury charged Smith with one count of Burglary in the Third Degree under Penal Law § 140.20, five counts of Grand Larceny in the Fourth Degree under Penal Law § 155.30(4), and one count of Petit Larceny under Penal Law § 155.25. In early 1998, Smith made bail. On March 23, 1998, while the case against Smith stemming from the Park Avenue incident was pending, Smith entered the Empire State Building, despite having previously signed a "trespass notice" expressly informing him that he would be trespassing if he ever re-entered the building.*fn2 Smith proceeded to the 46th floor of the building. When a woman in an office observed Smith through a glass door, he fled. The same woman received a number of telephone calls several hours later from someone who described the clothing she was wearing and uttered obscenities about her.

  Two days later, on March 25, 1998, Smith re-entered the Empire State Building and proceeded to the 28th floor. A security guard recognized Smith as a trespasser and confronted him. Smith sprayed the security guard with mace and fled. He also injured another building employee when he pushed the employee through a glass window, causing bloody gashes. Smith was subsequently apprehended by security guards on the street, after having sprayed three more people with mace and having knocked two others to the ground, resulting in varying degrees of injury. At least four witnesses identified Smith, including the woman who had seen him two days earlier. By Indictment Number 2646/98, filed on April 10, 1998, a New York County Grand Jury charged Smith in connection with the events of March 25, 1998 with seven counts of Burglary in the Second Degree under Penal Law §§ 140.25(1)(b) and 140.25(1)(c), five counts of Assault in the Second Degree under Penal Law §§ 120.05(2) and 120.05(6), and one count of Attempted Assault in the Second Degree under Penal Law §§ 110.00 and 120.05(2). Three counts pertaining to the incident of March 23, 1998 were subsequently dropped.

  The Guilty Pleas

  On November 5, 1998 Smith appeared with his trial attorney, Michelle Gelernt of the Legal Aid Society ("Gelernt"), who informed Justice Obus that Smith wished to plead guilty under both indictments in exchange for a sentence of 2 to 4 years on the Park Avenue incident and 8 years on the Empire State Building incident. The court noted the prosecution's recommendation that a longer sentence be imposed, but agreed to offer the disposition that Smith's attorney had requested. Gelernt informed the court that she had discussed the plea bargain with Smith, and the court directly addressed Smith, asking Smith if he wished to avail himself of the offer, to which Smith responded in the affirmative. The court confirmed Smith's understanding that a guilty plea would waive Smith's rights to have a trial, to present evidence, to confront the prosecution's witnesses, and to require proof beyond a reasonable doubt of his guilt. Smith indicated that he had not been promised anything other than the agreed-upon sentence or threatened by anyone to plead guilty. Smith then admitted that on October 10, 1997 he had entered the Park Avenue building with the intent to steal property inside. Smith further admitted that he had entered the Empire State Building on March 25, 1998 with the intent to commit a crime, injured several people in the process, and used or threatened to use a dangerous instrument (mace). The court clarified that Smith's intent need not have extended to injuring the victims, so long as he intended to commit a crime in the building.

  Justice Obus proceeded to explain to Smith that a guilty plea would be "a final resolution to the case" and that "the imposition of the promised sentence" was all that remained. (Declaration of Michael P. King, dated Mar. 22, 2004 ("King Decl."), Exh. T, at 7.) Justice Obus further explained:
If you decide between even now th[at] you would prefer to have a trial rather than going ahead with this disposition then we will not take the plea and we will set a trial date and whatever happens will happen.
  But, if you decide as I understand you have to resolve the case now given the alternatives this way then I will accept your plea. So, if you need any further time to speak to your lawyer now or if you have any question that you want to ask the Court about, let me know at this point. (King Decl., Exh. T, at 7-8.) Smith assured the court that he wanted to proceed with the pleas. The court announced its opinion that Smith, while possibly unhappy with his predicament, understood the risks involved and was making "a knowing decision under the circumstances and a voluntary one to resolve the cases in what is the most favorable manner possible under the circumstances." (King Decl., Exh. T, at 8.) The court formally accepted the pleas, adjudicated Smith a predicate felony offender, and adjourned the case for sentencing.

  Thereafter, on December 30, 1998, Smith, proceeding pro se, submitted a written motion to withdraw his plea. Smith contended that, while he had been given a notice regarding his lack of permission to enter the Empire State Building, the use of that information to prove his current burglary charge was forbidden because the charges arising from the earlier incident had been dismissed. On January 27, 1999, the court denied Smith's motion orally and by a written endorsement. The court characterized Smith's motion to withdraw his plea as "reiterating his position with regard to the underlying trespass warning," and noted that the court had previously rejected that argument prior to the plea.*fn3 (King Decl., Exh. U, at 3.) The court further explained that, regardless of whether the case concerning the January 7, 1997 incident had been dismissed, the notice that Smith received on that day showed that he lacked permission to return to the Empire State Building. Smith was then sentenced as set forth above.

  The CPL § 440.10 Motion

  On November 3, 1999, Smith, again proceeding pro se, filed a motion to vacate his conviction under Indictment Number 2646/98, moving under CPL § 440.10. Smith renewed his argument that the January 7, 1997 trespass notice was invalid, thus defeating the second-degree burglary charges, and asserted that the court's rejection of that argument in deciding Smith's previous motion had been erroneous. Smith further claimed that Gelernt and her supervisor at the Legal Aid Society, Richard Anderson, were ineffective because they persuaded him to plead guilty by telling him that he had no defense and no right to appeal.

  In a written decision and order dated March 8, 2000, the trial court denied Smith's § 440.10 motion without a hearing. The court noted that Smith's arguments concerning the January 7, 1997 trespass notice had been advanced and rejected pre-judgment, and had to be rejected on post-judgment review in view of Smith's pending appeal. The court nonetheless noted that,
[T]he No Trespass Notice, which bears the defendant's signature, presented to the grand jury was obtained from personnel at the Empire State Building, not the sealed file arising out of the defendant's 1997 arrest as the defendant claims.
(King Decl., Exh. G, at 2.) As to the ineffective assistance claim, the court observed that Smith's counsel's "assessment of the strength of the People's case against the defendant ...

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