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Antiqua v. Giambruno

March 30, 2006

JOSE ANTIQUA, PETITIONER,
v.
MICHAEL GIAMBRUNO, SUPERINTENDENT, WYOMING CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

REPORT AND RECOMMENDATION

Jose Antigua*fn1 brings this petition for writ of habeas corpus pro se challenging his conviction on September 25, 2002, in the Supreme Court of the State of New York, Bronx County, for one count of Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law ("NYPL") § 220.16). Antigua was sentenced as a predicate felon to an indeterminate prison term of four-and-one-half to nine years. For the reasons stated below, Antigua's petition should be denied.

I. BACKGROUND

A. The Plea

On November 7, 2001, Antigua appeared before the Bronx County Supreme Court and pled guilty to Criminal Possession of a Controlled Substance in the Third Degree (NYPL § 220.16) in full satisfaction of a Superior Court Information. Respondent's Brief, dated Feb. 2004 ("Resp. App. Br.") (reproduced as Ex. 2 to Affidavit in Opposition, filed Aug. 19, 2005 (Docket #4) ("Aff. in Opp.")), at 3; Brief for Defendant-Appellant, dated Nov. 4, 2003 ("Def. App. Br.") (reproduced as Ex. 1 to Aff. in Opp.), at 3; P. 2-14.*fn2 A Spanish-language interpreter was present. (P. 2). The court noted that Antigua was going to enter into a plea as well as a concomitant cooperation agreement. (P. 2). The court asked if Antigua had "read over the entirety of [the] plea and cooperation agreement." (P. 3). Antigua's defense counsel responded by stating, "I explained it. I read it to him in English and explained it to him in English through an interpreter." (P. 3). The court then asked Antigua if he had "read it over with the assistance of [his] attorney," and Antigua responded, "Yes." (P. 3). The court asked Antigua to initial each page of the cooperation agreement indicating that he had read and reviewed it with his attorney.

(P. 3-4).

The relevant text of the cooperation agreement was as follows: On November 7, 2001, the Defendant agrees to plead guilty . . . to the class B felony of Criminal Possession of a Controlled Substance in the Third Degree. If the cooperation contemplated herein has been determined to be successful by the District Attorney's Office, the Defendant's sentence will be reduced, in accordance with the terms of this agreement . . .

Upon termination of the Defendant's cooperation contemplated herein, the NYPD will make a full report to the District Attorney's Office regarding the degree of success or failure of Defendant's cooperation. The District Attorney's Office based on the report of the NYPD will determine the value and success of Defendant's cooperation and, with the Court's consent, the Defendant will be sentenced as follows:

(A) If the Defendant does not comply, in the District Attorney's office sole discretion, with the terms of cooperation delineated in paragraph 3,[*fn3 ] infra then the Defendant will receive a sentence of imprisonment of an indeterminate term of 12 1/2 to 25 years.

(B) If the Defendant's cooperation has been successful, and justifies a sentence less than 12 1/2 to 25 years, the District Attorney's Office will agree to recommend a lesser sentence to the sentencing court. If necessary, to permit the imposition of a lesser sentence, the District Attorney's Office will consent to the withdrawal of defendant's plea and entry of a plea to a lesser offense.

The determination of what constitutes successful cooperation will be made solely and exclusively by the District Attorney's Office with input from the New York City Police Department. General intelligence information (which does not lead to an arrest or seizure), attempts to cooperation [sic], good faith, or best efforts at cooperation will not be rewarded. In exchange for the Defendant's full and complete cooperation, the District Attorney's Officer will in good faith work to determine what, if any, reduction in sentence or other consideration the Defendant should receive.

Def. App. Br. at 4-5 (quoting Cooperation Agreement, dated Nov. 7, 2001, at 1-3).

The terms of the agreement were repeated during the course of the plea allocution. The prosecutor noted that "if he's cooperated and the cooperation is substantial, . . . he can get as low as lifetime probation." (P. 5). The prosecutor added that "[a]t this time we're not in a position to make probation as an offer, but with the understanding that in certain cases where the cooperation is extraordinary, we do have the authority to offer this defendant probation." (P. 5). The prosecutor stated further: he's pleading guilty to the B felony with a promise of four and a half to nine. He will be cooperating with the District Attorney's Office. And that's the time that he would be working off. So if he does cooperate and the level of cooperation is worth less than four and a half to nine, then we will permit him to take back his plea and offer him another plea which would substantiate us [sic] lessening his sentence.

(P. 6). Following this statement, the court gave its own summary of the agreement, stating that the "[t]he presumptive sentence is four and a half to nine years" but that "[i]f he offers extraordinary cooperation, you will consider having him substitute a plea, pleading to something like lifetime probation." (P. 6).

During the plea colloquy, the trial judge asked Antigua if he was pleading guilty "with the understanding as to your cooperation and as to possible sentence as set out in the document that you have just signed just minutes previous." (P. 9). Antigua replied, "Yes." (P. 9). The court also asked if Antigua had fully discussed the plea and cooperation agreement with his attorney, "as well as the possible benefits of your cooperation and the consequences to you if you violate any of the conditions." (P. 9). Antigua replied, "Yes." (P. 9). Antigua acknowledged that he was satisfied with the services of his attorney. (P. 9). When asked by the court if anyone had "forced" him to "take this plea" or had made any other promises for his guilty plea, Antigua replied, "No." (P. 10). The court also inquired as to whether there was any part of the agreement that Antigua wished the court or his counsel to explain further to him, and Antigua replied, "No." ...


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