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Santos v. Payant

December 13, 2007

LAZARO SANTOS, PRO SE, PETITIONER,
v.
LEO E. PAYANT, SUPERINTENDENT, MOHAWK CORRECTIONAL FACILITY, RESPONDENTS.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

MEMORANDUM AND ORDER

Pro se petitioner, Lazaro Santos ("Petitioner"), was convicted in the New York State Supreme Court, Queens County, on September 14, 2004, following a plea of guilty for grand larceny in the third degree under New York Penal Law section ("P.L. §") 155.35. Petitioner was sentenced, as a second felony offender, to an indeterminate term of three-to-six years. Petitioner did not make a timely direct appeal.

On December 28, 2004, Petitioner filed a pro se motion pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.20 to set aside his sentence, claiming that he was improperly adjudicated a predicate felony offender. On February 25, 2005, the Queens County Supreme Court denied Petitioner's motion. The Appellate Division of the New York State Supreme Court, Second Department, (the "Appellate Division") denied Petitioner's pro se application for leave to appeal on May 9, 2005.

Thereafter, on December 2, 2005, Petitioner filed a pro se motion for an extension of time to file a late direct appeal under C.P.L. § 460.30. The Appellate Division denied Petitioner's motion on January 25, 2006.

Petitioner now challenges his sentence through the instant petition for a writ of habeas corpus pursuant to Title 28 of the United States Code ("U.S.C.") § 2254, on the ground that he was improperly sentenced as a predicate felony offender, in violation of the Eighth and Fourteenth Amendments. For the reasons set forth below, the petition is denied.

I. Facts

A. Prior Convictions and Incarcerations

On May 30, 1987, Petitioner was convicted of attempted robbery in the second degree, a class D felony (P.L. §§ 110.05(5), 160.10(1)), and sentenced on August 7, 1992 to one year of imprisonment. He served a total of 313 days, including time served prior to sentencing, and was released on parole on March 18, 1993.

During the subsequent period, from 1992 to 2004, Petitioner was convicted of various misdemeanors, for which he received sentences of time served or conditional discharge, with short-term suspensions of his driver license.

B. Current Conviction and Incarceration

On January 31, 2003, at John F. Kennedy International Airport ("JFK Airport") in Queens County, New York, Petitioner and an accomplice stole a suitcase containing property valued in excess of $5,000.00. Petitioner was arrested on March 31, and was charged with grand larceny in the third degree (P.L. § 155.35).*fn1 On July 16, 2003, the district attorney filed a Second Felony Offender Statement pursuant to C.P.L. § 400.21, stating that, on August 7, 1992, Petitioner was sentenced to one year in prison after pleading guilty to attempted robbery in the second degree (P.L. §§ 110.05(5), 160.10(1)), and noting that Petitioner must therefore be sentenced, pursuant to P.L. § 70.06, as a second felony offender. Petitioner made no objection to the Second Felony Offender Statement.

On January 23, 2004, at a proceeding held before Justice James Griffin in the Queens County Supreme Court, Petitioner, represented by counsel, pled guilty to the grand larceny charge.*fn2*fn3

Petitioner stated that he waived his right to appeal and acknowledged that he was pleading guilty of his own free will.

As a part of Petitioner's plea agreement, sentencing was adjourned so that Petitioner could participate in an "Alternatives to Incarceration" program offered by the Fortune Society. If Petitioner successfully completed the program, the District Attorney would permit Petitioner to withdraw his felony plea with respect to the grand larceny charge and plead instead to a misdemeanor, and the District Attorney would recommend a sentence of conditional discharge. However, if Petitioner failed to complete the program, was rearrested, or failed to appear before ...


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