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Schwartz v. Connell

December 6, 2006

JERROLD SCHWARTZ, PETITIONER,
v.
SUSAN CONNELL, RESPONDENT.



The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.

OPINION AND ORDER

Jerrold Schwartz ("Petitioner") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction upon a guilty plea, in New York State Supreme Court, New York County, to four counts of sodomy. Petitioner argues that (1) he received ineffective assistance of counsel; and (2) "the indictment was constitutionally deficient in that it lacked adequate specificity as to the dates of the alleged offenses." (Pet.'s Mem. 2.)

BACKGROUND

A. Relevant Facts

On July 9, 2001, Petitioner was charged in an indictment containing thirty-six counts of sodomy. The charges were based on allegations that between September 1, 1996 and May 21, 1997, Petitioner had "improper sexual contact" with a boy who was under the age of 17. (Declaration of Mark Gimpel ("Gimpel Decl."), dated February 6, 2006, ¶ 2.) During that time, Petitioner was a troop leader for the Boy Scouts of America ("Boy Scouts"); Complainant was a member of his troop. (Id.)

The criminal charges against Petitioner followed the filing of a civil suit by Complainant against Petitioner, the Boy Scouts, and several other defendants. (See Complaint, dated May 17, 2001 ("Compl."), attached as Ex. A to Gimpel Decl.) Aside from Complainant's allegations, the State's case was supported by a tape recording made by Complainant (unbeknownst to Petitioner) in which Petitioner apologized for his conduct. (Transcripts, dated April 17 and 18, 2001, Gimpel Decl., Exs. B and C.)

Initially, Petitioner was represented by Charles Stillman, Esq., who had been retained as counsel in the civil suit. (Gimpel Decl. ¶ 4.) After receiving a voluntary disclosure form from the State (attached as Ex. E to Gimpel Decl.), Mr. Stillman moved for a bill of particulars specifying when and where each of the events charged took place. (Gimpel Decl. ¶ 9.) On March 25, 2002, after several motions and hearings on the issue, the State presented Mr. Stillman with a bill of particulars, identifying with some more precision the dates on which, and places where, some of the alleged acts had taken place, but remaining unspecific as to other counts (Gimpel Decl. Ex. N.)

On March 26, 2006, Mr. Stillman withdrew as counsel, and Joseph Bondy, Esq., who had been assisting Mr. Stillman on a voluntary basis, took over representation. (Transcript dated March 26, 2002, Gimpel Decl., Ex. O.) Mr. Bondy was joined by Robert Fogelnest, Esq,. who made a first appearance before the court on April 23, 2002. (See Transcript dated April 23, 2002 ("4/23 Tr."), attached as Ex. P to Gimpel Decl.) At this appearance Mr. Fogelnest advised the court that he needed a period of time to review the file, and to consider a "non-trial disposition." (Id. at 4.)*fn1 At a subsequent hearing on May 7, 2002, the Petitioner withdrew his plea of not guilty, and pled guilty before Justice Charles H. Solomon pursuant to an agreement with the State.*fn2 (See Transcript, dated May 7, 2002, attached as Ex. Q to Gimpel Decl.)

B. Procedural History

Petitioner pled guilty to four counts of Sodomy in the Third Degree (N.Y. Penal Law § 130.40(2)), on May 7, 2002. (Gimpel Decl. ¶ 27.) On August 23, 2002, Petitioner was sentenced, on two counts of Sodomy in the Third Degree, to consecutive terms of one and one-third to four years imprisonment.*fn3 (Id. at ¶ 32.) On direct appeal, Petitioner challenged his conviction on the grounds that the indictment failed to specify the times of the alleged offenses, that the sentence was illegally imposed because the judge failed to identify the counts on which he was imposing sentence, that the Petitioner was denied effective assistance of counsel, that the sentencing judge improperly considered the letter of another alleged victim at the sentencing hearing, and that the sentence was excessive. (Pet.'s App. Br., attached as Ex. A to Resp.'s Opp'n. Mem.)*fn4 The Appellate Division, First Department, affirmed the conviction and sentence on May 25, 2004. Thereafter, leave to appeal to the New York Court of Appeals was denied. People v. Schwartz, 776 N.Y.S.2d 800 (1st Dep't 2004), lv. denied, 816 N.E.2d 577 (2004).

On November 9, 2004, Petitioner moved, pursuant to Section 440.10 of the New York Criminal Procedure Law, to vacate his conviction on the grounds that he was denied effective assistance of counsel, the right to be present at critical stages of the proceeding, due process of law because his sentence was based on false information, and, that his conviction was barred by the statute of limitations. (Pet.'s Mot. for Relief Pursuant to N.Y. Crim. Proc. Law § 440.10 ("Pet.'s § 440 Mot.), attached as Ex. G to Declaration of Chelsea Chaffee, Esq., dated March 6, 2006.) By order dated March 29, 2005, Honorable Charles H. Solomon denied Petitioner's Section 440.10 motion. People v. Schwartz, Ind. No. 3771/01, slip op. (Sup. Ct., New York Co. Mar. 29, 2005) (Justice Solomon dismissed those ineffective assistance of counsel claims which had been raised on direct appeal and rejected by the Appellate Division, and held that the other ineffectiveness claims were procedurally barred because Petitioner could have raised them on his direct appeal.). By order dated June 3, 2005, the Appellate Division, First Department denied Petitioner's leave to appeal the denial of his Section 440.10 motion. People v. Schwartz, Ind. No. 3771/01, slip op. (1st Dept. June 7, 2005). The instant Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed on February 6, 2006. For the reasons that follow, the Petition is denied.

DISCUSSION

Petitioner makes two constitutional claims. First, that the indictment under which he was charged was not specific enough to meet the Sixth Amendment guarantee that a defendant be "informed of the nature and cause ...


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