Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Crummell v. Fischer

United States District Court, E.D. New York

May 11, 2017

CURTIS W. CRUMMELL Petitioner,
v.
BRIAN FISCHER, Respondent.

          MEMORANDUM DECISION AND ORDER

          Ann M Donnelly United States District Judge.

         The pro se petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in connection with his New York State guilty plea to Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03(3)), Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02(1)), and Criminal Possession of Weapon in the Fourth Degree (Penal Law § 265.01(1)). The petitioner argues that his attorney was ineffective for failing to advise him that his sentence would run consecutively to the petitioner's undischarged sentence for an unrelated prior felony. The petitioner also argues that his plea was unconstitutional. For the reasons that follow, the petition for a writ of habeas corpus is denied.

         FACTUAL AND PROCEDRUAL HISTORY

         On August 11, 2005, the petitioner pleaded guilty to Criminal Sale of a Controlled Substance in the Fifth Degree, and was sentenced to an indeterminate prison term from two years to four years. (ECF 9, Ex. 1 at 139.) After the petitioner was released on parole, officers from the New York State Division of Parole made an unannounced "home visit" on March 26, 2008, and found ammunition in the petitioner's dresser drawer. (ECF 9, Ex. 1 at 56-57, 60.) The officers also recovered a .22 caliber revolver from the petitioner's jacket sleeve. (Id.) They summoned officers from the Nassau County Police Department who arrested the petitioner and took him into custody. (Id.)

         The petitioner was indicted for Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03(3)), Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02(1)), and Criminal Possession of Weapon in the Fourth Degree (Penal Law § 265.01(1)). On October 19, 2009, the petitioner appeared with his attorney, John Serio, before the Honorable George Peck in Nassau Country Supreme Court and pleaded guilty to the three count indictment.[1](ECF 9, Ex. 1, at 112.) The prosecutor advised the court that his office had videotape of the petitioner selling heroin. As part of the plea, however, he agreed not to seek an additional drug indictment against the petitioner. (Id. at 108.) The court promised to sentence the petitioner to the minimum permissible term of imprisonment.[2] (Id. at 138.)

         As part of the plea allocution, the petitioner confirmed, under oath, that he was in good physical and mental health, that he was satisfied with his counsel's representation, and that his plea was voluntary. (Id. at 129.) The court explained each of the rights that the petitioner was giving up and the petitioner acknowledged that he understood. (Id.) In addition, the court advised the petitioner that he was giving up the right to assert any defenses, and that he would be waiving his right to appeal the court's denials of his suppression and speedy trial motions. (Id.) The petitioner then admitted that on March 26, 2008, he possessed a firearm and ammunition at his home.[3] (Id.) The court accepted the plea, finding that the petitioner understood the nature and consequences of the plea and the rights he was giving up. (Id. at 133-34.) The petitioner did not move to withdraw his plea.

         On May 6, 2010, the judge sentenced the petitioner, as pronounced, to a determinate prison sentence of five years on the second degree weapons count, an indeterminate term of two to four years on the third degree weapons count, and one year on the misdemeanor. (Id. at 140-41.) The court ordered that the terms of imprisonment run concurrently. (Id. at 141.)

         The petitioner appealed his conviction to the Appellate Division, Second Department in January of 2011, claiming that the first count of the indictment was jurisdictionally defective because it did not set forth facts supporting each element of the claim.[4] (ECF 9, Ex 2. at 9.) The Appellate Division affirmed the petitioner's conviction, and found that the indictment was not jurisdictionally defective. (Id. at 37.) The Court of Appeals denied the petitioner's application for leave to appeal on September 27, 2011. (ECF 9, Ex. 3 at 3.)

         On December 9, 2011, the petitioner moved to set aside his sentence pursuant to C.P.L. § 440.20. (ECF 9, Ex. 4 at 3.) The petitioner alleged that his lawyer was ineffective because he "refused to forewarn the defendant of direct consequences causing unlawful enhancement and aggravating collateral aggregation from concurrent to consecutive." (Id. at 4.) On January 20, 2012, the court denied the petitioner's motion, ruling that the petitioner "did, in fact, receive the bargained for sentence, " which was the minimum sentence. (Id. at 82-83.) According to the court, the petitioner had "not identified any specific deficiency in counsel's performance." (Id. at 85.) On the contrary, the court found that the lawyer "waged a vigorous defense" and "vociferously argued" all the petitioner's defenses. (Id. 84-85.) The court could not "imagine how any attorney could have done something different in order to obtain a better result for Mr. Crummell." (Id. 85.) The court also observed that to the extent that the petitioner's complaint was with the way his sentence was calculated, that issue was not an appropriate subject for a § 440 claim. The petitioner did not appeal this decision.

         Then, in January of 2012, the petitioner filed a C.P.L.R. Article 78 petition, seeking an order directing Brian Fischer, Commissioner of the New York State Department of Corrections and Community Supervision, to "cease and desist consecutively resentencing" him and return "jail time credit" to the petitioner. (ECF 9, Ex. 5, at 3.) On February 24, 2012, the prosecutor confirmed that the petitioner's concurrent sentences on the gun case were running consecutive to the undischarged portion of his earlier narcotics sentence as required by NY Penal Law § 70.25(2-a). (Id. at 22.) The prosecutor also argued, however, that the court was not required to inform the petitioner, at the time of the plea, of this collateral consequence. (Id. at 23.) On February 27, 2017, the court dismissed the petition without prejudice, and directed the petitioner to commence an action in a venue permitted by CPLR 506. (Id. at 102.)

         On February 6, 2012, the petitioner filed this action seeking a writ of habeas corpus. (ECF 1.)

         DISCUSSION

         Construing his claims liberally, the petitioner argues that his attorney was ineffective for failing to advise him that the sentences imposed by Judge Peck would run consecutively to his undischarged sentence on the prior felony. The petitioner also argues that his plea was not entered knowingly, voluntarily, or intelligently, because he did not understand the charges against him, and because he was "coached" on what to say. (ECF 1 at 6.) Both claims are procedurally barred, and, in any event, fail on the merits.

         1. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.