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Carroway v. Annucci

United States District Court, N.D. New York

February 25, 2014

ANTHONY CARROWAY, Petitioner,
v.
ANTHONY J. ANNUCCI, Acting Commissioner, New York Department of Corrections and Community Supervision, [1] Respondent.

MEMORANDUM DECISION

JAMES K. SINGLETON, Jr., Senior District Judge.

Anthony Carroway, a New York state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. At the time he filed his Petition, Carroway was in the custody of the New York Department of Corrections and Community Supervision and incarcerated at Attica Correctional Facility. He was released on supervised parole on October 18, 2013. Respondent has answered. Carroway has not replied.

I. BACKGROUND/PRIOR PROCEEDINGS

The Appellate Division described the factual background of this case as follows:

[Carroway] pleaded guilty to criminal possession of a controlled substance in the fourth degree in exchange for an agreed-upon prison sentence of five years followed by three years of postrelease supervision. At sentencing, [Carroway] moved to withdraw his plea. Based upon some confusion as to whether the prosecutor had mentioned at the plea hearing the potential for persistent felony offender sentencing-which was not applicable in this case-and whether that statement may have improperly induced [Carroway's] plea, County Court offered [Carroway] a reduced sentence if he waived the right to appeal that issue. When [Carroway] attempted to bargain for an even lower sentence, the court stated, "If [Carroway] wants to withdraw his plea today, that's fine, it goes back on the trial calendar. We are through negotiating. It's the original offer or nothing." Defense counsel then informed the court that [Carroway] would proceed with the five-year sentence. Counsel acknowledged [Carroway's] status as a second felony offender and the court sentenced him to five years in prison followed by three years of postrelease supervision.

People v. Carroway, 922 N.Y.S.2d 632, 633 (N.Y.App.Div. 2011).

On February 21, 2009, Carroway moved to set aside the sentence pursuant to New York Criminal Procedure Law ("CPL") 440.20. Carroway argued that he should not have been sentenced as a second felony offender because he was 15 years old at the time he committed the predicate felony. In response, the People argued that according to the Predicate Felony Information which had been filed, Carroway was 17 years old at the time he was convicted of the predicate felony of second-degree murder and he did not receive a youthful offender adjudication. Therefore, there was no factual basis to support his claim that he was incorrectly sentenced as a second felony offender. On March 25, 2009, the county court denied the motion, concluding that the sentence was legally imposed.

On June 3, 2009, Carroway filed a second motion to set aside his sentence pursuant to CPL § 440.20, arguing that his sentence was illegal and that his conviction was not supported by substantial evidence. On June 29, 2009, the county court denied the motion based on the reasons set forth in its March 25, 2009, decision. Carroway attempted to appeal from the order to the Appellate Division, but failed to provide certain documents and accordingly the Appellate Division did not assign a return date for the motion.

In a letter dated August 2, 2009, Carroway argued that under New York law, the crack cocaine he possessed was not a "narcotic" but actually a narcotic "preparation, " and that his possession of 9.14 grams was less than the 2 ounces required to find him guilty of fourth-degree criminal possession of a controlled substance. The county court indicated that it would treat the letter as a CPL § 440 motion. The People argued, inter alia, that under New York law, crack cocaine is a narcotic rather than a narcotic preparation and that Carroway did in fact possess the requisite amount to convict him. On August 28, 2009, the county court denied the motion on the ground that the determination of whether crack cocaine is a narcotic or narcotic preparation was appropriate for direct appeal and not a CPL § 440 motion, and that in any event, Carroway's assertion that crack cocaine is a narcotic preparation was "simply not correct." Thus, the court declined to revisit Carroway's claim that his sentence was illegally imposed.

On December 27, 2010, Carroway filed a motion to vacate the judgment pursuant to CPL § 440.10, arguing that he should not have been sentenced as a persistent felony offender.[2] The People again argued that Carroway had previously been incarcerated for attempted murder, there was no indication that he had been adjudicated a youthful offender, and thus he was eligible for sentencing as a second violent felony offender. The county court denied the motion on the ground that there was "no evidence in [Carroway's] criminal record or in his motion to support his contention that the prior violent felony conviction for attempted murder resulted in a youthful offender adjudication."

On April 1, 2010, Carroway filed a notice of motion for resentencing pursuant to CPL § 440.46, stating that he was willing to attend an alcohol or substance abuse program and that he had maintained a fair disciplinary record.[3] On April 30, 2010, Carroway filed a motion to set aside his sentence pursuant to CPL § 440.10, but did not provide any supporting argument. However, he did provide an affidavit in support of a motion to set aside his verdict pursuant to CPL § 440.20 (but did not file a motion), again arguing that he should not have been sentenced as a second felony offender and that he was mistakenly charged with possession of crack cocaine because crack is a preparation material rather than narcotic and he did not possess the requisite amount to convict him. On June 1, 2010, Carroway filed a letter stating that he would be filing "a judgement [sic] motion" and a "discovery motion, " and again argued that crack cocaine was a preparation rather than narcotic and that he did not possess the requisite amount.

The People argued although Carroway had been adjudicated a youthful offender on a 1991 plea to first-degree robbery, he had not been granted youthful offender status on the 1990 seconddegree attempted robbery and attempted murder convictions. The county court relied on its previous August 28, 2009, order, concluding that whether crack is a preparation rather than a narcotic is a matter for direct appeal and that Carroway was not eligible for resentencing to a diversion program as he had requested.

On July 20, 2013, Carroway moved to set aside his sentence pursuant to the Drug Law Reform Act of 2009, codified at CPL § 440.46. The county court concluded that Carroway was ineligible for relief under CPL § 440.46, and that, considering this was Carroway's sixth motion for post-relief conviction and the court's sixth denial, the court may summarily deny future motions.

Nevertheless, on November 9, 2010, Carroway again filed a letter motion in which he argued that he was wrongfully charged. The county court denied relief on the ground that Carroway had repeatedly moved on this basis and that he had recently been appointed new counsel and was in the process of appealing to the Appellate Division.

On March 29, 2010, Carroway again moved pursuant to CPL § 440.10, claiming that he was illegally sentenced as a second felony offender and was wrongfully charged where he possessed a drug preparation rather than a narcotic. The county court denied relief on the ground that Carroway had already repeatedly submitted multiple motions to vacate his conviction and failed to raise any new issues.

On December 10, 2010, Carroway filed a counseled brief with the Appellate Division, arguing that: 1) his guilty plea was not knowingly, voluntarily and intelligently entered; 2) the county court should have granted Carroway's motion to withdraw his guilty plea; 3) Carroway was improperly sentenced as a second felony offender because the ...


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