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Janick v. Franklin

December 8, 2005

LAWRENCE JANICK, PETITIONER,
v.
SUPERINTENDENT, FRANKLIN, CORRECTIONAL FACILITY, AND COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENTS.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

INTRODUCTION

Lawrence Janick ("Janick" or "petitioner"), represented by counsel, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a guilty plea to charges of third degree and fourth degree grand larceny. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Janick was indicted by a Monroe County Grand Jury on three counts of grand larceny in the third degree and four counts of grand larceny in the fourth degree. The charges stemmed from Janick's alleged participation, along with his wife, in the extortion scheme described below.

On September 11, 1998, Janick approached a man outside an adult book store in the City of Rochester and asked whether he was "looking for a date." The man inquired whether Janick was a police officer, and Janick assured him he was not. The two men then drove together to another location, whereupon Janick exposed his penis. As soon as the man touched it, Janick announced that he worked for the local newspaper and was going to write an article about the incident. The man identified himself as a priest and pleaded with Janick not to publish the story. With the priest now in a state of panic, Janick mentioned that he knew of a priest in the Niagara Falls area who had been in a similar predicament, and had avoided disclosure by donating money to the newspaper's Lend-A-Hand fund. The priest immediately offered to do the same, and handed Janick the contents of his wallet--$80. Janick informed the priest that that was not enough money, and told the priest to meet him the following morning.

Over the next two months, the priest turned over more than $30,000 to Janick. In November 1998, Janick recruited his wife to help him extort more money from the priest; the priest ultimately gave her a total of $3,000.

The ruse came to an end in November of that year when the police were called to a motel in the City of Rochester to respond to an altercation between Janick and his wife, Kim Glascoe ("Glascoe"). The police discovered large sums of cash in the couple's room. Glascoe, who apparently was angry at her husband and wanted to get him into trouble, confessed to the police concerning where the money had come from. To verify her story, she called the extortion victim at his rectory and handed the phone to the police. The priest confirmed that he had made cash payments to Janick to avoid disclosure of something shameful he had done.

Janick and Glascoe then were arrested, and both gave statements to the police. Glascoe gave a full confession detailing the entire extortion scheme. Janick admitted that he took large sums of money from the priest on several occasions but denied ever threatening him. According to Janick, the priest gave the money to him voluntarily.

On May 20, 1999, shortly before his trial was scheduled to begin in New York State Supreme Court (Monroe County) (Ark, J.), Janick agreed to plead guilty to the entire indictment and waive his appellate rights in return for a sentence promise of two to four years imprisonment. The written plea agreement provided that the court could sentence the defendant "[a]s it deem[ed] appropriate," should the defendant "[v]iolate the law" prior to sentencing. People v. Janick, 186 Misc.2d 1, 2, 713 N.Y.S.2d 838 (Sup. Ct. Monroe Co. 2000) (citing Plea Agreement and Colloquy, ¶4) ("Should I [v]iolate the law . . . between now and my sentencing, the court . . . [may enhance] . . ."). After Janick and his defense counsel filled out and signed the court's plea agreement and colloquy, counsel reiterated his understanding of that agreement:

Judge, it's my understanding that if Mr. Janick was to plead guilty to all seven counts contained in the indictment . . . that he would receive a minimum sentence as a predicate felon of two to four years.

I also asked the court whether Mr. Janick would be permitted to be released from custody at this point until the time of sentencing. My understanding [is] the court will allow that to occur, but will also advise Mr. Janick of any enhancement warnings, and those warnings would include that he cannot be arrested for any violation of state, federal, [or] local law between the time of his release and the time of the sentencing. . . .

If he were to fail or violate any of those conditions the court has the opportunity to sentence him up to the maximum of this charge, if the charges were to be run consecutive[ly], which would be essentially a maximum of ten to twenty years." P.3-4 (emphases supplied).*fn1 Defense counsel added, "If there is anything I've left out I'd ask the court to notify me." P.4. The court did not correct defense counsel.

The prosecutor then requested that the court advise Janick that "no new crimes or arrests while he is out of custody should occur," and that "on violation or failure to comply with any one of those conditions, that the court has the right and in fact will enforce the promise it will make as to the maximum sentence." P.6 (emphasis supplied). Thereafter, the court engaged Janick in the following colloquy:

The Court: . . . Do you understand everything that's been put on the record, Mr. Janick?

Defendant: Yes, I do.

The Court: Do you understand the conditions that have been set forth by the assistant district attorney?

Defendant: Yes, I do. . . .

The Court: Also do you understand that if you don't show up on July 13th, 1999 at 9:30 in the morning for sentencing, or you get arrested between now and that time, or you violate any of the other terms and conditions that have been set forth by the two attorneys on today's date, that you'll . . . serve a minimum of ten years, not to exceed twenty years in a state prison, do you understand that?

Defendant: Yes, I do.

P.8-9 (emphasis supplied). The court then proceeded to take Janick's guilty plea. Pursuant to the terms of the plea bargain, Janick was released from custody pending sentencing.

Prior to sentencing, on June 24, 1999, Janick was arrested and charged with extorting money from another victim in a scheme similar to that used on the priest. Due to the possibility that Janick had violated the "no arrest" provision of his plea agreement, making him subject to receiving a sentence enhancement, the court held a hearing pursuant to People v. Outley, 80 N.Y.2d 702, 594 N.Y.S.2d (1993),*fn2 to determine whether there was a "legitimate basis" for Janick's ...


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