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Dean v. United States

February 27, 2006

KEVIN DEAN, PETITIONER,
v.
UNITED STATES, RESPONDENT.



The opinion of the court was delivered by: Trager, J.

MEMORANDUM & ORDER

On August 31, 2005, petitioner Kevin Dean's habeas corpus petition was dismissed and converted into a petition for a writ of coram nobis. Dean v. United States, No. 05-1496, 2005 WL 2129153 (E.D.N.Y. Sept. 1, 2005). The government was directed to submit the form upon which plaintiff allegedly pled guilty to a charge of public lewdness. Id. The government has been unable to locate the requested documents, but has attempted to comply with the order by submitting the "Violation Notice" form used by the United States Park Police at the time of Dean's arrest. The government has also filed a motion for reconsideration, arguing that the doctrine of coram nobis does not apply and that the case should be dismissed.

Background

Dean's petition relates to a February 12, 1992 arrest and charge of public lewdness. (Def.'s Mem. of Law in Supp. of its Mot. for Recons. ("Def.'s Mem.") Ex. 5.) Dean was arrested at Gerritsen Inlet by a plainclothes park police officer for public lewdness under 36 C.F.R. § 7.29(c). Id. The officer issued Dean a Violation Notice and released him. Id.

Dean does not challenge this arrest, but argues that his subsequent payment of a fine resulted in an invalid conviction. Id. Dean says that the arresting officer advised him not to contact a lawyer, but to pay a fine, after which the case would "fall off [his] record in a few years and no one would know about this little incident." (Dean's Aff. in Supp. of Mot., Oct. 25, 2004 ("Dean Aff. Oct. 2004").)

The officer's comments and a Violation Notice were the only warnings to Dean from the government on the results of paying the fine. The original copy of the Violation Notice may have had a description of Dean's alleged crime on its first page, but the government claims that it does not have a copy of the exact notice it gave to Dean. (Decl. of AUSA Steven M. Warshawsky ("Warshawsky Decl.").) However, as noted above, it has provided a copy of the last page of the type of Violation Notice that was "most likely" the form used by the United States Park Police at the time of his arrest. Id. This Violation Notice has instructions for both mandatory and optional appearances depending on which box is marked. (Warshawsky Decl., Ex. A. ("1992 Violation Notice").) Since Dean was allowed to pay the fine, presumably his appearance was optional.

The directions for optional appearances in the form provided by the government state that the person to whom the ticket was issued must either:

1. PAY THE COLLATERAL AMOUNT SPECIFIED

If you wish to dispose of your case WITHOUT HAVING TO APPEAR IN COURT, mail your personal check or money order in this envelope within 7 days for the amount of the collateral specified. ... Payment of the collateral ("fine") will signify to the court that you do not contest the charge nor request a court hearing. ... or

2. APPEAR IN COURT. . . .

Id. (emphasis in the original). Dean chose the first option and paid the fine rather than appearing in court.

The government has also submitted the Violation Notice that is currently in use by the United States Park Service in this district. ("Violation Notice," attached to Letter from Steven Warshawsky to the Court of 12/14/2005 ("current Violation Notice".)) Unlike the version in use when Dean paid the fine, this current version of the Violation Notice has been modified to give some warning of what may occur upon payment of the fine: "In some federal jurisdictions, payment of the total collateral due constitutes a plea of guilty or nolo contendere." Id. This version of the notice includes an additional form for the officer to fill out explaining the type of offense and a description of it. Id. No similar form was included in with the 1992 Violation Notice.

In its initial brief for the reconsideration motion, the government claimed that there was also no record that Dean paid the fine. (Def.'s Mem. at 5.) After Dean provided a copy of a letter from the Department of Interior indicating the fine was paid (Pls.' Opp'n, Ex. A), the government acknowledged that the Central Violations Bureau ("CVB") has maintained a record of the payment of a fine of $80 on February 26, 1992 for violation no. P513549 (Def.'s Reply Mem. in Supp. of its Mot. for Recons. at 2 ("Def.'s Reply")).

This record of the fine and the possibility of a conviction on Dean's record emerged again more than ten years after the 1992 arrest. In December 2003, his employer, the State of New Jersey, hired a private agency to do a background check of his fingerprints. (Dean Aff. Oct. 2004.) At the time, Dean had been working for the State of New Jersey as a school bus driver for seventeen years. Id. The private agency found the record of his arrest, and Dean informed the agency that he paid a ...


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