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Desio v. Terbush

May 3, 2007


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


James Desio (hereinafter "petitioner" or "Desio") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. In a judgment rendered on March 4, 2003 following Desio's guilty plea in the Supreme Court of the State of New York, Queens County, Desio was convicted of third-degree robbery. He was sentenced to four consecutive terms of two to six years imprisonment.

Desio challenges his conviction on the grounds that he was denied effective assistance of appellate counsel. For the reasons set forth below, the petition is denied.


A. The Facts

The following facts are taken from the instant petition and underlying record. On September 3, 2000, Desio robbed four gas stations in a twenty-four hour period. He was charged in four different indictments with first-degree robbery and related crimes. Desio's trial counsel, Anthony V. Lombardino, Esq., negotiated a plea bargain for Desio. The terms of the plea bargain were outlined at the plea proceeding on November 27, 2001, and were not set down in writing.

1. The Plea Proceeding

Initially, the judge summarized the plea bargain, wherein Desio would plead to four counts of third-degree robbery, and receive a sentence of five years of probation, "with the understanding that the sentence would be a probationary sentence" dependent upon (1) Desio leading "a law-abiding life for the entire probationary period" and (2) his completion of a residential substance abuse counseling program. (P. at 3-4.)*fn1 The prosecutor, Neal Gitin, added:

[I]f there is a Violation of Probation . . . the [c]ourt will sentence the defendant to two to six years consecutive on all four of the indictments, thereby leading to a definitive sentence of eight to 24. I would like the [c]ourt to ask the defendant if that is acceptable and he understands that is a condition.

(P. at 3.) The judge then asked Desio, "do you understand?" (P. at 4.) To which Desio replied, "Yes, I do." (Id.) This exchange between the judge and Desio (designated, respectively, as "the Court" and "Defendant" in the transcript) followed:

THE COURT: I want you [Desio] to understand the full scope of what the probationary sentence is because it's five years. If you screw up at any point during the five year period it's two to six years incarceration on each indictment, consecutive, for a total of eight to 24. Do you understand?

DEFENDANT: I understand.

THE COURT: Do you want to go forward with this plea?


(P. at 4-5.)

The judge then began the plea colloquy. First, the judge told Desio that, during the plea proceeding, if there was anything Desio did not understand or wanted the judge or his lawyer to explain to him, Desio should alert the court. (P. at 6-7.)

Next, the judge had the following exchange with Desio regarding Desio's obligations prior to sentencing, and the consequences of breaching those obligations:

THE COURT: You have to stay out of trouble between today and January 9th [the original sentencing date]. . . . If you violate any of the conditions about staying out of trouble between today and January 9th, . . . the two to six year period Mr. Gitin referred to will apply. If you get in trouble or don't come back to court it's two to six years. If . . . you stay out of trouble between now and January 9th, you will get the probationary sentence with the counseling program and special conditions. If I do sentence you on January 9th to the probationary period and you violate any term or condition of that Probation you face two to six years in jail consecutively on each of the four indictments. Do you understand all of the conditions that I have outlined, sir?


THE COURT: Do you have any questions that you want to ask Mr. Lombardino or do you want to ask me at this point?


THE COURT: Are you sure you understand the rights you are giving up and the conditions of the proposed sentence[,] the probationary sentence?


(P. at 8-9.) Desio then pled guilty to four counts of robbery in the third-degree.

2. Desio's Arrest Prior to Sentencing

On December 10, 2002, Desio was arrested for the theft of an automobile belonging to his girlfriend.*fn2 Subsequently, Desio was indicted for third-degree criminal possession of stolen property, fourth-degree grand larceny, and other related charges. On March 4, 2003, Desio was arraigned on the grand-larceny indictment before ...

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