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Safran v. Department of Corrections and Community Supervision

United States District Court, E.D. New York

April 30, 2014

David J. SAFRAN, Petitioner,


PAMELA K. CHEN, District Judge.

David J. Safran ("Petitioner"), appearing pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, to vacate his 2011 judgment convicting him of multiple counts of criminal possession of a forged instrument. Because Petitioner's claims are procedurally defaulted and/or without merit, his petition is DENIED in its entirety.


I. The Charged Conduct and Indictment

On the evening of November 13, 2010, Petitioner was stopped by a New York City police officer while driving in Queens County. (Dkt. 20-1 at ECF 46[1].) The police officer had noticed that Petitioner's car had a forged temporary Arkansas license plate, which had "marker and pen ink handwriting" instead of "typewritten font." ( Id. ) During the car stop, the police officer found and recovered 22 forged copies of Petitioner's temporary Arkansas license plates and 119 forged copies of Petitioner's Arkansas registration sticker from Petitioner's vehicle. ( Id. at ECF 46-47.)

On May 26, 2011, Petitioner was indicted on 141 counts of Criminal Possession of a Forged Instrument in the Second Degree (N.Y. Penal Law ("N.Y.P.L.") § 170.25) by a Queens County grand jury. (Dkt. 20-2 at ECF 5.)

II. The Guilty Plea and Sentencing

On October 20, 2011, Petitioner entered a plea of guilty to Criminal Possession of a Forged Instrument in the Second Degree, a class D felony, in Queens County Supreme Court. In return, Petitioner was promised an indeterminate sentence of two to four years in state prison, to run concurrent with the time Petitioner was serving in a separate Suffolk County case. (Dkt. 20-1 at ECF 5.)

During the plea allocution, Petitioner acknowledged that "on or about November 13 of 2010 in the county of Queens [he was] in possession of... [a] forged Arkansas state temporary tag... with the intent to deceive another person to get a benefit." ( Id. ) Petitioner also acknowledged that he understood that "by pleading [he was giving] up the right to go to trial, " at which "[his] attorney would have [had] an opportunity to question or cross examine the witnesses against [him]." ( Id. ) Petitioner further acknowledged that "[b]y admitting [his] guilt [he was giving gives] up [his] right to remain silent and... [his] right to have the DA's office prove these charges beyond a reasonable doubt." ( Id. ) When asked by the court about the voluntariness of his guilty plea, Petitioner denied that "[a]nyone [was] forcing [him] to plead guilty" and affirmed that "[he was] pleading guilty because [he was] guilty." ( Id. at ECF 6.)

After the court explained to Petitioner his right to appeal, Petitioner acknowledged that he understood that he had "a right to appeal the plea and sentence" but was waiving those rights by signing the waiver. ( Id. at ECF 7.) The waiver signed by Petitioner included a waiver of his right to file post-conviction motions and applications, which expressly extended to motions to vacate his conviction and sentence under New York Criminal Procedure Law Article 440.[2] ( Id. at ECF 10.)

On November 17, 2011, Petitioner was sentenced to an indeterminate sentence of two to four years, concurrent with the sentence he was serving for his Suffolk County conviction. ( Id. at ECF 16.)

III. Direct Appeal

Although it is unclear from the record when Petitioner actually filed the notice of appeal or what claims he raised on appeal, [3] Petitioner asserts that he made the following claims: (a) he was denied a speedy trial[4]; (b) he was improperly sentenced for a violation of N.Y.P.L. § 170.25[5] when he should have been sentenced for a violation of New York Vehicle and Traffic Law ("N.Y.V.T.L.") § 403-a[6]; (c) he never pled guilty or had a jury trial; and (d) he was imprisoned or detained without a court order. (Dkt. 1 at ECF 2.)

On September 20, 2012, the Appellate Division, Second Department sua sponte deemed Petitioner's previously filed moving papers to constitute timely notice of his appeal, and granted him an extension of time to perfect the appeal. People v. Safran , No. 2012-02010, 2012 WL 4127431, (N.Y.App.Div. Sept. 20, 2012). The order also authorized Petitioner to proceed with his appeal pro se, but required him to waive his right to appellate counsel. Id. [7]

On January 29, 2014, the court unanimously affirmed Petitioner's conviction and sentence, finding that: (a) Petitioner's guilty plea was "knowing, voluntary, and intelligent;" (b) Petitioner was lawfully sentenced, pursuant to his plea agreement, for the crime to which he pleaded guilty, i.e., criminal possession of a forged instrument in the second degree, a class D felony; and (c) Petitioner's remaining claims were without merit. People v. Safran, 978 N.Y.S.2d 911, 911-12 (N.Y.App.Div. Jan. 29, 2014).

On February 19, 2014, Petitioner applied for leave to appeal the Second Department's decision to the Court of Appeals. As of the date of this Memorandum and Order, the Court of Appeals has not yet decided Petitioner's motion for leave to appeal.

IV. Post-Conviction Collateral Attack

On January 6, 2012, Petitioner filed a pro se motion to set aside his "conviction, commitment, sentence, indictment" pursuant to New York State Criminal Procedure Law ("N.Y.C.P.L.") §§ 440.10, 440.20, and 440.30 ("440 Motion"). (Dkt. 20-1 at ECF 19-25, 89.) The asserted grounds were: (a) his guilty plea was defective because he was "held under a state of duress in handcuffs and in the courtroom" ( Id. at ECF 19); (b) the court lacked jurisdiction because the charged offense was possession of forged Arkansas license plates and registration stickers, not New York State license plates and registration stickers ( Id. at ECF 19-20); (c) his conduct only violated N.Y.V.T.L. § 403-a, a traffic infraction, and was not a felony ( Id. at ECF 20-21); (d) the trial court never ruled on his pro se motion to dismiss the indictment[8] ( Id. at ECF 20-21); (e) because each item recovered from him had the words "Item not for use" inscribed on it, there was no intent to defraud ( Id. at ECF 21, 23); (f) the car stop and search was unlawful ( Id. at ECF 21-22, 24-25); (g) there was no probable cause for his arrest ( Id. at ECF 21, 24-25); (h) no traffic tickets were issued to him, and therefore, he was not in violation of law ( Id. at ECF 22, 24-25); (i) the indictment was defective because it failed to list any item possessed by Petitioner ( Id. at ECF 24); (j) only the New York State Attorney General had authority to address his violation of N.Y.V.T.L § 402-a[9] ( Id. at ECF 24); (k) a violation of N.Y.V.T.L § 402-a could only result in civil penalties[10] ( Id. at ECF 24); and, (l) he was a victim of malicious prosecution. (Dkt. 20-1 at ECF 23.)

On February 4, 2012[11], Petitioner filed a supplemental motion reiterating these claims. ( Id. at ECF 89; see also Dkt. 20-2 at ECF 8.) On February 13, 2012, in response to the prosecution's opposition, Petitioner submitted an affidavit in which he, among other things, asserted that the waiver of his appeal right was "void" (Dkt. 20-1 at ECF 85), and denied executing "any waiver' for anything on or off the record for this case." (Dkt. 20-1 at ECF 85-86.)

On March 13, 2012, the Queens County Supreme Court ("440 Court") denied Petitioner's 440 Motion on both procedural and substantive grounds. ( Id. at ECF 89, 95.) The 440 Court held that certain claims by Petitioner were procedurally barred by "[his] plea of guilty and/or by waiver of his right to appeal or to make post-judgment motions." ( Id. at ECF 92.) The court "summarily denied" several of Petitioner's claims, including his claims "that his motion to dismiss was not ruled on by the Court" and "that his conduct rose only to the level of a traffic offense." ( Id. at ECF 92-93.) The court also noted that Petitioner's claim "that he did not waive his right to appeal" is "definitively refute[d]" by "[t]he Waiver of Appeal attached to the People's Affirmation in Opposition, signed by [Petitioner] in the presence of his attorney and the Court." ( Id. at ECF 92.) Lastly, the court held that the claims that were "arguably" not procedurally barred were meritless. ( Id. at ECF 93.) Specifically, the court held that Petitioner's claim of duress "provides no basis to vacate judgment, " because he did not claim "that his guilty plea was not knowing, intelligent, or voluntarily, nor does a review of the minutes of the plea support such a claim." ( Id. at ECF 94.) Moreover, the court reached the conclusion that "[Petitioner] was not coerced into entering a plea in this matter and was, in fact, aware of all the ramifications of his plea. The plea was entered into knowingly, intelligently, and voluntarily, with no indication that the defendant was subjected to duress." ( Id. )

On March 14, 2012, Petitioner was served with a Notice of Entry regarding the denial of his 440 Motion. ( Id. at ECF 128.) Petitioner did not apply for leave to appeal the denial. (Dkt. 20-2 at ECF 15.) Instead, on March 29, 2012, Petitioner moved pro se for reconsideration of the denial of his 440 Motion. (Dkt. 20-1 at ECF 97.)

On May 24, 2012, the Queens County Supreme Court denied Petitioner's motion to reconsider. ( Id. at ECF 124.) The court held that: (a) the claims addressed in the initial motion were not the proper subject of a motion to reargue, and lacked merit ( Id. at ECF 124); and (b) the new claims raised in the reconsideration motion should be denied pursuant to N.Y.C.P.L. § 440.10(3)(C), "which provides that a motion to vacate judgment may be denied when upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so.'" ( Id. ) The court also found these new claims to be without merit. ( Id. at ECF 125.)

On May 29, 2012, Petitioner was served with Notice of Entry regarding the denial of his motion to reconsider. ( Id. at ECF 130.)

V. The Instant Petition

On February 1, 2012, prior to filing his 440 Motion, Petitioner filed a habeas petition in the Eastern District of New York "challenging both his Suffolk County conviction (Case No. 00388-2011) and his Queens County conviction (Case No. 00926-2011)." (Dkt. 20-2 at ECF 12.) On July 20, 2012, then-presiding Judge Joseph F. Bianco directed Petitioner to file separate petitions for each of the two state court judgments. ( Id. ) (referencing Case No. 12-CV-599, Dkt. No. 18).

On August 13, 2012, [12] Petitioner filed the instant habeas petition challenging his Queens County conviction. (Dkt. 1; Dkt. 20-2 at ECF 13.) Petitioner asserts the following claims: (a) he was denied a speedy trial; (b) he was sentenced without a guilty plea or a jury verdict; (c) he was improperly sentenced for violating N.Y.P.L. § 170.25, a felony, when he only violated N.Y.V.T.L. § 403-a, a traffic infraction; and (d) he was denied his right to appeal in state court. (Dkt 1 at ECF 4.)


I. Standard of Review

As a threshold matter, the Court is mindful that the submissions of a pro se petitioner are "to be liberally construed, " Erikson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation marks omitted), and interpreted "to raise the strongest arguments that they suggest." Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)) (internal quotation marks and emphasis omitted). But the Court "need not argue a pro ...

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