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Albert M. Beckary v. Paul Chappius

July 25, 2012


The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge


I. Introduction

Petitioner Albert M. Beckary ("Petitioner"), through counsel, has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered July 25, 2008, in New York State, County Court, Wyoming County, convicting him, upon a plea of guilty, of Attempted Assault in the First Degree (N.Y. Penal Law ("Penal Law") §§ 110.00, 120.10[1]). Petitioner was sentenced to a determinate term of fifteen years imprisonment with five years of post-release supervision.

II. Factual Background and Procedural History

A. Introduction

Petitioner was indicted by a Wyoming County grand jury and charged with Attempted Murder in the Second Degree (Penal Law §§ 110.00, 125.25[1]), Assault in the First Degree (Penal Law § 120.10[1]), and Assault in the Second Degree (Penal Law § 120.05[1]). The charges arose from an incident that occurred on the evening of June 5, 2007, wherein 44-year-old Petitioner beat 71-year-old Gary Preen ("Preen" or "the victim"), causing serious physical injury to Preen, in the parking lot of the "Vet's Club" in the Village of Perry, New York.

B. Pre-Plea Proceedings

On June 20, 2007, Petitioner appeared with counsel at a felony hearing held in the Village Court, Village of Perry, New York. Caroline Vosberg ("Vosberg") testified that she was tending bar at the "Vet's Club" on the night of June 5, 2007. See Resp't Ex. A at 6, 10. At approximately 9:30 p.m., she had to "throw [Petitioner] out" of the club because he "had too much to drink" and "was bothering people." Id. at 6-7, 10-11. Specifically, Petitioner "started yelling at [Preen]" but "[Preen] didn't want to fight," and instead "put his beer down" and left. Id. at 10-11. Therafter, Vosberg heard a noise outside, so she opened the back door and saw Petitioner's "upper body," as he was standing behind a vehicle. Vosberg thought that Petitioner "was beating on somebody's vehicle or something . . . ." Petitioner "started screaming and jumping up and down. I hate you. I'm going to kill you. Bunch of swear words." Vosberg testified that "it dawned on" her that "it was [Preen's] truck behind [Petitioner] and [she] couldn't see [Preen]." Id. at 7. Vosberg "started screaming," but Petitioner "kept jumping and jumping and kicking." Id. Petitioner eventually "turned and looked at [Vosberg] and starting coming at" her, at which time she "slammed the door shut" and "locked it." Id. at 7-8. She called 911, and when she went out to see the victim in the parking lot, "[h]e was halfway under his vehicle. There was blood all over the place. His face was swollen. He was . . . barely breathing and conscious. His ear . . . looked like it was falling off." Vosberg "thought [Preen] was dead." Id. at 8. Vosberg confirmed that certain pictures offered by the People accurately depicted the victim's injuries that night. Id. at 9. Her hearing testimony also matched her sworn police statement from the night of the assault. See Resp't Ex. C.

Police Officer Antonio Geraci of the Perry Police Department testified at the felony hearing that on the night of the assault, he arrested Petitioner at his home. See Resp't Ex. A at 12-14, 20. Following his arrest, Petitioner made certain sel-incriminating statements that Officer Geraci recorded in a written report that was admitted into evidence at the hearing. See Resp't Ex. A at 14-20. According to Officer Geraci's report, Petitioner told Officer Geraci that "he was stupid for what he had done to Gary Preen," and that he had "just lost it and beat the hell out of him." See Resp't Ex. D. Petitioner further stated, "[o]h my god[,] I am stupid[,] I can't believe this, I am a bad man, and I am in jail for beating up that man. This is God[']s way of telling me something. I am learning a lesson of God[']s way. I never disrespect my elders and I can[']t believe I did that to Gary. I have hated him for so long and now this happens." Id.

Carol Preen, the victim's wife, testified that her husband was rushed to the hospital after the assault. His injuries included "bleeding on the brain," "a very huge hematoma on the right eye," a gash over the eye, and "his ear was torn away," such that it "had to be cauterized and stitched." See Resp't Ex. A at 22-23. At the time of the hearing, the victim still needed speech and other therapy. See Resp't Ex. A at 23-24.

According to hospital records, Preen suffered an "[a]ssault with subarachnoid hemorrhage, cerebral contusion and abrasions." See Resp't Ex. E at 1, 3. Photographs taken by the police at the hospital showed Petitioner's badly beaten face, which required multiple stitches. See Resp't Ex. B. He was discharged eight days later, on June 14, 2007, but required continuing "speech therapy" as well as occupational and physical therapy. See Resp't Ex. E.

Officer Geraci also testified at a grand jury proceeding, where he offered the same account of Petitioner's arrest and statements on the night of the arrest. See Resp't Ex. F at 22-24. Officer Geraci described the victim as "laying on the ground with half his head peeled off at the earlobe." Id. at 20, 26. On August 31, 2007, a Wyoming County grand jury charged Petitioner with second-degree attempted murder, first-degree assault, and second-degree assault. See Resp't Ex. G.

Subsequently, Petitioner retained new counsel, Michael Mohun, Esq. In a letter to counsel on October 8, 2007, Petitioner described the extreme side-effects he suffered from taking the anti-depressant Paxil. Petitioner also listed a number of "goals," including, "staying out of prison"; "[b]lame a drug and not me - if possible"; and "civil lawsuit against . . . Paxil and generic mfr." See Resp't Ex. H at 4-5. Attorney Mohun later filed a Notice of Intent to Proffer Psychiatric Evidence to support the defenses of "extreme emotional disturbance" or "intoxication." See Resp't Ex. I.

On November 8, 2007, a Huntley hearing was conducted with respect to Petitioner's motion to suppress his statements to Officer Geraci. See Resp't Ex. J. The court denied the motion. See Resp't Ex. K.

Counsel retained a psychiatric expert, Jeffrey J. Grace, M.D., Chief of Forensic Medicine at Buffalo Psychiatric Center, to determine whether Petitioner was competent to stand trial, and to advise whether Petitioner could assert the defenses of extreme emotional distress or intoxication. See Resp't Exs. L, M. In order to aid Dr. Grace, counsel provided him with certain material, including Petitioner's October 8, 2007 letter, which, according to counsel, described Petitioner's mental state "before Paxil" and "after Paxil." See Resp't Ex. L. On February 19, 2008, Dr. Grace issued his report (hereinafter "the Grace report") finding that Petitioner "was competent to proceed with court proceedings." Dr. Grace also found, however, that at the time of the crime, Petitioner was "act[ing] under the influence of an extreme emotional disturbance." See Resp't Ex. M. Dr. Grace referenced and attached to his report the documents forwarded by counsel, including Petitioner's October 8, 2007 letter to counsel. Id. Counsel later produced the Grace report, with attachments, to the prosecution and the court, citing his disclosure obligations under CPL § 240.30. See Resp't Ex. N.

Counsel also retained a "blood spatter expert," Dr. Herbert L. MacDonnell. See Resp't Ex. O. After reviewing the victim's medical records as well as Petitioner's shoes and clothing from the night of the assault, Dr. MacDonnell issued a report, dated January 9, 2008 ("MacDonnell report"), opining, among other things, that Petitioner's shoes could not have caused the victim's injuries because of the "directionality" of the blood stains on the shoes and clothing, and the "very small amount of what appears to be bloodstains on [Petitioner's] clothing and shoes." See Resp't Ex. O.

B. The Plea

The People offered Petitioner a plea deal, following which Petitioner sent counsel a letter from jail on April 3, 2008, stating that, days earlier, he had decided to abruptly reduce his dose of Paxil. In this letter, Petitioner noted, among other things, that "[he] [was] - of course - leaning towards accepting the plea deal . . . ." See Resp't Ex. P.

On April 10, 2008, Petitioner appeared with counsel and entered a plea of guilty to Attempted Assault in the First Degree. See Resp't Ex. Q. On the record, Petitioner acknowledged that he understood that, in satisfaction of the entire indictment, he was pleading guilty to Attempted Assault in the First Degree, a Class C felony, which would carry a determinate sentence ranging from 3 1/2 to 15 years, at the judge's discretion, along with 2 1/2 to 5 years of post-release supervision. Id. at 2-3, 5-7. As part of the plea, Petitioner also waived his right to appeal, and executed a formal waiver. Id. at 6-8; Resp't Ex. R. Petitioner acknowledged that he had discussed the plea with counsel, and that his plea had not been induced by any other promises or threats. See Resp't Ex. Q at 8-9. He also stated that he understood that he was giving up various rights, including the right to a jury trial and to testify. Id. at 9-10. He then formally admitted the elements of attempted assault in connection with his attack on Preen. Id. at 11.

On April 25, 2008, Petitioner consulted Paul A. Kettl, M.D., a psychiatrist, who reported that Petitioner's current "mood is good," and that Petitioner will "gradually taper Paxil over the next couple of weeks." See Resp't Ex. S.

C. Motion to Withdraw the Plea

Petitioner subsequently fired attorney Mohun and hired new counsel, Scott M. Green, Esq., who filed a motion dated July 11, 2008, to withdraw Petitioner's plea on the grounds that it was involuntary. Petitioner alleged that: (1) attorney Mohun "coerced" him into accepting the plea by threatening that the court would otherwise raise his bail; and (2) he was not competent to enter a voluntary plea because, prior to the plea hearing, he reduced his Paxil dosage and, as a result, could not "comprehend and understand the ramifications of his plea." See Resp't ...

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