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James Curry v. Patrick Griffin

April 20, 2012


The opinion of the court was delivered by: Seybert, District Judge:


James Curry ("Petitioner") petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, his Petition is DENIED.


I. Petitioner's Convictions, Sentences, and Parole Revocation In 1978, Petitioner was convicted in Supreme Court,

Suffolk County of Murder in the Second Degree and two counts of Attempted Burglary in the Third Degree and sentenced to an indeterminate term of fifteen years to life. (Att'y Gen. Exs. A, D at 3.) Petitioner remained incarcerated until 1994, when he was released to parole supervision. (Att'y Gen. Ex. B.) His certificate of release indicated that he would remain under the supervision of the Division of Parole for the rest of his life. (Att'y Gen. Ex. B.)*fn1

Petitioner remained on parole until he was arrested on August 22, 2003 for allegedly driving on the wrong side of the highway and being in possession of a used crack pipe. He was charged with three counts of Reckless Endangerment in the First Degree in violation of N.Y. PENAL LAW § 120.25, one count of Driving While Ability Impaired by Drugs in violation of N.Y. VEH. & TRAF. LAW § 1192(4), one count of Criminal Possession of a Controlled Substance in the Seventh Degree in violation of N.Y. PENAL LAW § 220.03, one count of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree in violation of N.Y. VEH. & TRAF. LAW § 511(1)(a), and four traffic violations. (Lamm Aff. ¶ 3; Pet. Ex. D.) Petitioner sustained injuries prior to arrest and was admitted to Brookhaven Memorial Hospital Medical Center in Patchogue, New York that same day for treatment. (Pet. Ex. B.)*fn2

On August 21, 2003, a Warrant for Retaking and Detaining a Paroled or Conditionally Released Prisoner was issued (Att'y Gen. Ex. C),*fn3 and on August 29, 2003, while Petitioner was still in the hospital, a Notice of Prospective or Pending Grand Jury Proceeding pursuant to N.Y. CRIM. PROC. LAW § 190.50(5)(a) was sent to Petitioner's attorney, Robert W. Dapelo, Esq. Mr. Dapelo, on that same date, sent the Suffolk County District Attorney's Office a letter stating that Petitioner waived his rights under N.Y. CRIM. PROC. LAW §§ 30.30, 30.20, and 180.80 until September 30, 2003. (Pet. Ex. C.) Petitioner was arraigned at Brookhaven Memorial Hospital on September 2, 2003 and bail was set at $25,000 cash or $250,000 bond. (Lamm Aff. ¶ 5.) He was discharged on September 4, 2003 and, after being evaluated at the Peconic Bay Medical Center, taken to the Suffolk County Correctional Facility. (Lamm Aff. ¶ 6.)

On September 26, 2003, the Division of Parole issued a Notice of Violation and Supplementary Violation of Release Report. Documented on the Notice was Petitioner's waiver of his preliminary parole revocation hearing. Petitioner was provided a copy of both the Notice and the Report. (Att'y Gen. Mem. 2; Lamm Aff. ¶ 6.)

In December 2003, Susan Menu, Esq. replaced Mr. Dapelo as Petitioner's counsel. Between January and May 2004, Ms. Menu wrote three letters to the Suffolk County District Attorney's Office attempting to negotiate a plea agreement under which Petitioner would only be required to plead guilty to a misdemeanor offense because "should Mr. Curry plead quilty [sic] to a felony and receive even the minimum, he would be subject to a considerable enhancement of his time in prison due to his lifetime parole status." (Kucera Aff. in Opp. to 440 Motion Ex. J.)

On September 28, 2004, Petitioner appeared in County Court, Suffolk County represented by Ms. Menu where he waived his rights to indictment by the Grand Jury and consented to prosecution by Superior Court Information. He then, pursuant to a negotiated plea agreement, pled guilty to one count of Attempted Reckless Endangerment in the First Degree, N.Y. PENAL LAW §§ 110, 120.25, a class E felony, and his case was adjourned for sentencing. (Att'y Gen. Mem. 3; Lamm Aff. ¶¶ 9-10.) In exchange for Petitioner's guilty plea, the Government agreed not to make a negative recommendation with respect to Petitioner's eventual parole hearing. See People v. Curry, 56 A.D.3d 489, 489, 865 N.Y.S.2d 915 (2d Dep't 2008).

On October 26, 2004, Petitioner was sentenced as a second felony offender to the bargained-for term of one and one-half to three years imprisonment. (Att'y Gen. Ex. D; Pet. Ex. D.) However, neither the sentencing judge nor the Sentence and Commitment Order mentioned the impact of parole revocation on Petitioner's term of imprisonment. Plaintiff never appealed his conviction.

A few weeks later on November 10, 2004, the Division of Parole sent Petitioner a notice declaring him delinquent, revoking his parole, and "requesting the Inmate Records Coordinator [to] take such action as is necessary to recompute [his] sentence(s) in accordance with the law." (Att'y Gen. Ex. F.) The notice also advised Petitioner that "[t]he time from the established date of delinquency to [his] scheduled maximum expiration of sentence, on the previous conviction, may be added, by the Department of Correctional Services, to the maximum expiration term of [his] new sentence." (Att'y Gen. Ex. F.)

Petitioner appeared before the Parole Board on April 5, 2005, January 16, 2007, November 8, 2008, and in November of 2010. Each time, Petitioner was denied parole.

II. State Petitions Challenging his Conviction and Sentence On June 10, 2005, Petitioner filed a motion pro se in Supreme Court, Suffolk County pursuant to N.Y. CRIM. PENAL LAW ยง 440.10 seeking to vacate the judgment of conviction on the grounds that: (1) he did not personally plead guilty; (2) his plea was not knowing, voluntary, and intelligent; and (3) his plea was the result of ...

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