Smith v. Scully

Filing 86

MEMORANDUM, ORDER AND JUDGMENT: There is no basis for granting the petition as amended. It is dismissed. The court incorporates and adopts the reasoning in its October 16, 2003 and April 16, 2012 Orders. A certificate of appealability on the new issue of ineffective assistance of counsel is denied. Ordered by Judge Jack B. Weinstein, on 9/13/2013. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Memorandum, Order and
Judgment

TERRY SMITH,

No.

Petitioner-Movant,

02-CV-6329
04-CV-1725

- against WILLIAM PHILLIPS, as Superintendent of
Green Haven Correctional Facility,
Respondent.

Appearances:
For petitioner:

Jeffrey G. Pittell
299 E. Shore Road
Great Neck, NY 11023

For respondent:

Glenn D. Green
Suffolk County District Attorney’s Office
Criminal Courts Building
200 Center Drive
Riverhead, NY 11901

Contents
I. Introduction ............................................................................................................................. 2
II.

Proceedings .......................................................................................................................... 2

III.

Analysis of Law and Facts ................................................................................................... 2

A.

Intent................................................................................................................................. 3

B.

No Constitutional Issue on Trial ...................................................................................... 5

C.

Full Warnings Given by Counsel ..................................................................................... 6

D.

Punishment for Not Pleading Guilty ................................................................................ 6

IV.

Conclusion ........................................................................................................................... 9

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JACK B. WEINSTEIN, Senior District Judge:
I.

Introduction
Claiming failure of his attorney to protect his constitutional rights, petitioner-movant

seeks a writ of habeas corpus. Am. Pet. for Writ of Habeas Corpus, No. 04-CV-1725, April 29,
2013, ECF No. 68 (“Am. Pet.”). The Petition is denied for reasons stated below.
II.

Proceedings
Already denied with a limited certificate of appealability were prior versions of the

petition. See Terry Smith v. Phillips, Nos. 02–CV–6329, 04–CV–1725, 865 F. Supp. 2d 271
(E.D.N.Y. 2012) (“Smith II”); Terry Smith v. Scully, No. 02–CV–6329, 2003 WL 22952848
(E.D.N.Y. Oct. 16, 2003) (“Smith I”). Without deciding a direct appeal, the Court of Appeals for
the Second Circuit remanded to permit petitioner-movant’s amendment. See Mandate of the
Court of Appeals for the Second Circuit, No. 04-CV-01725, March 12, 2013, ECF No. 64.
Counsel was appointed. The petition was amended.
III.

Analysis of Law and Facts
Knowledge of the relevant factual and procedural history based on pervious Orders is

assumed. See Smith II at 274-77; Smith I at *1-3. Petitioner-movant stipulates that there is only
one unresolved issue. Evidentiary Hr’g Tr., No. 04-CV-01725, Aug. 29, 2013, ECF No. 81
(“Hr’g Tr.”), at 57:18-24. His motion can be summarized as follows: trial counsel failed to
inform him that mens rea need not be proven for one of the charges against him, so he turned
down a plea offer, went to trial and received a longer prison term than would have been imposed
had he pled guilty. Hr’g Tr. 29:1-23; 39:15-40:4.
As he put the matter in his pro se motion in the Supreme Court of the State of New York

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seeking to vacate his judgment of conviction pursuant to N.Y.C.P.L. §440.10:
Lawyer never told defendant that [N.Y. Penal Law Section] 120.08(3) or 120.08(6) do
not even require proof of any intent. The Judge and D.A. never stated this as well.
Petitioner’s claim that he was “not responsible” due to his brain injury which was a
intracerebral hematoma in the right frontal lobe of the brain and/or a collection of blood 2
cm. Doctor Floras stated you can do anything (not knowing) what you are doing. So
defendant pleaded not guilty. The lawyer never told defendant about subsections
120.8(3) or 120.8(6) which doesn’t require proof of any intent. If defendant was told
this, he would have pleaded guilty because that is N.Y.S. law.
Am. Pet. at 19 (quoting “440 Motion” pp. 5-6) (emphasis added).
After advice from his present counsel, petitioner-movant framed the argument in his
amended petition differently: “[p]etitioner contends if he had been advised—that intent to cause
physical injury was not an element of the Assault Charge in the SCI—he would have withdrawn
his request to vacate his guilty plea (due to his claim of being ‘not responsible’) to the SCI.” Id.
at 19-20. Thus formulated, petitioner-movant’s theory is that he withdrew his guilty plea based
upon the belief that he had sustained a brain injury that prevented him from forming the specific
intent to injure and his attorney’s failure to advise him that intent to injure was not a requisite
element of the assault charge amounted to ineffective assistance. Id.
There is no basis for his claim in either form.
A. Intent
Petitioner-movant was offered a joint plea in two related cases: (1) possession of stolen
property (an automobile) and (2) assault on an emergency medical services professional
attempting to assist him after he crashed while attempting to flee from the police.
Petitioner-movant was wrong that mens rea need not be proven for the assault charge.
The Superior Court Information (SCI), dated November 17, 1997, charged him with:
ASSAULT IN THE SECOND DEGREE, committed as follows:
The defendant, Terry Smith, on or about May 24, 1997, in Suffolk County, with
intent to prevent an Emergency Medical Services Professional from performing a lawful
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duty, caused physical injury to such Emergency Medical Services Professional.
Respd’t Letter Ex. 2, No. 04-CV-1725, Aug. 8, 2013, ECF No. 79, at 3 (Superior Court
Information) (emphasis added). While the SCI does not cite a specific statutory provision of the
New York Penal Law, the felony complaint, also dated November 17, 1997, accused petitionermovant of: “ASSAULT IN THE SECOND DEGREE in violation of NYS Penal Law Section
120.08.” Respd’t Letter Ex. 1, No. 04-CV-1725, Aug. 8, 2013, ECF No. 79, (Felony Complaint)
(emphasis added).
New York Penal Law Section 120.08 does require proof of intent:
A person is guilty of assault on . . . an emergency medical services professional when,
with intent to prevent . . . an emergency medical service paramedic or emergency medical
service technician, from performing a lawful duty, he causes serious physical injury to
such . . . paramedic or technician.
N.Y.P.L. § 120.08 (emphasis added).
Petitioner-movant’s 440 Motion in the New York Supreme Court refers to New York
Penal Law Sections 120.08(3) and 120.08(6). Am. Pet. at 19 (quoting 440 Motion pp. 5-6). But,
there are no subsections to Section 120.08. The Amended Petition, filed with assistance of
counsel, rests on New York Penal Law Sections 120.05(3) and 120.05(6). Id. at 18-19. The SCI
makes clear petitioner-movant was not charged under 120.05(6). See N.Y.P.L. 120.08(6) (“A
person is guilty of assault in the second degree when . . . in the course of and in furtherance of
the commission or attempted commission of a felony . . . or immediate flight therefrom, he . . .
causes physical injury to a person other than one of the participants.”).
Section 120.05(3) provides:
A person is guilty of assault in the second degree when: . . . With intent to prevent . . . an
emergency medical service paramedic or emergency medical service technician, or
medical or related personnel in a hospital emergency department . . . from performing a
lawful duty . . . he or she causes physical injury to such . . . paramedic, technician or
medical or related personnel in a hospital emergency department . . . .
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N.Y.P.L. 120.05(3) (emphasis added). As written, the SCI charge could have been proper under
either New York Penal Law Section 120.05(3) or 120.08. See N.Y.P.L. §§ 120.05(3) & 120.08.
Both Sections 120.05(3) and 120.08—one of which the State would have proceeded
under to prove assault—require proof of intent. Thus, petitioner-movant’s argument in his 440
Motion was based on a misunderstanding of required mens rea.
Petitioner-movant’s amended petition makes a more nuanced argument, finding fault
with his trial counsel’s failure to inform him that the specific “intent to injure” was not a required
element of the assault charge. This formulation of petitioner-movant’s legal argument is based
on a more accurate understanding of the required mens rea. But, it is predicated on the fact that
had petitioner-movant known the mens rea for the assault charge was intent to prevent an EMT
from performing a lawful duty rather than intent to injure the EMT he would have pled guilty—a
premise contradicted by statements in the 440 Motion and at his hearing in this court. See id. at
19; Hr’g Tr. 20:5-23; 29:1-9; 41:18-42:9; 46:14-47:3.
Petitioner-movant repeatedly stated that he withdrew his guilty plea because he “didn’t
feel responsible” for the assault once his doctor told him that “you can do anything not knowing
what you are doing” after a brain injury of the type he experienced during the accident. Hr’g Tr.
41:18-42:9; see also Hr’g Tr. 39:24-40:4. He also testified: “I strongly believe I could have beat
the assault on trial anyway.” Hr’g Tr. 46:14-47:3. This last statement undermines the credibility
of petitioner-movant’s claim that he would have pled guilty had he known the requisite mens rea
for the assault charge. See also Hr’g Tr. 42:14-23.
B.

No Constitutional Issue on Trial

In any event, the State did not proceed with the assault charge. It allowed that charge to
lapse. Since petitioner-movant was never convicted of assault he was not adversely affected by
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his failure to plead guilty to it. See Hr’g Tr. 44:6-9; 47:6-21.
As to the possession of stolen property charge on which he was convicted, guilt was
always clear. He was found alone in the driver’s seat of a stolen car after attempting to flee in it
from police. He can hardly now object to having been convicted in such an open-and-shut case.
Petitioner-movant was not prejudiced by trial counsel’s alleged ineffective assistance.
Strickland v. Washington, 466 U.S. 668, 692 (1984) (“[A]ny deficiencies in counsel’s
performance must be prejudicial to the defense in order to constitute ineffective assistance under
the Constitution.”).
C.

Full Warnings Given by Counsel

Before he was tried, petitioner-movant was fully informed of the consequences of not
accepting the plea being offered, but he insisted on going to trial. He was warned by his attorney
that, if he was convicted after trial on the stolen property charge, he would receive a sentence
equivalent to the one that he did receive after his conviction—17 ½ years to life.
He refused to follow his attorney’s advice to accept the plea offer. The attorney’s
warning was clear, concise, and sound under the circumstances. Hr’g Tr. 41:4-17; see also
Sentencing Tr., 4:9-11, Jan. 12, 1998. Trial counsel was constitutionally adequate.
D. Punishment for Not Pleading Guilty
Petitioner-movant was originally offered a plea of 2½ to 5 years if he pled guilty to
possession of stolen property in the third degree. That plea offer was withdrawn. A new offer of
3½ to 7 years with a determinant sentence of 5 years for both a stolen property and assault
charge was offered. Plea Tr., 2:11-11:4, Nov. 17, 1997. This second offer was turned down by
petitioner-movant. He insisted on a trial.
After trial he was sentenced to 17½ years to life. It could be argued that he was

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“punished” for exercising his constitutional right to trial by jury by being given an extremely
long sentence, approximately three times what he would have obtained had he pled guilty. Some
would suggest that the sentence was a coercive violation of the constitutional right to a jury trial.
See, e.g., Tina Wan, Note, The Unnecessary Evil of Plea Bargaining: An Unconstitutional
Conditions Problem and A Not-So-Least Restrictive Alternative, 17 S. Cal. Rev. L. & Soc. Just.
33, 34 (2007) (arguing plea bargains unconstitutionally “penalize[e] those defendants who
choose to exercise their constitutional rights and reward[] those who refrain from doing so”);
Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 Cal. L. Rev. 652 (1981)
(describing sentencing differentials between plea bargains and trials as shockingly large and
constitutionally indefensible); Thomas R. McCoy & Michael J. Mirra, Plea Bargaining As Due
Process in Determining Guilt, 32 Stan. L. Rev. 887 (1980) (“The unconstitutional conditions
doctrine seems to present a serious question about the constitutional validity of the practice of
plea bargaining.”).
Petitioner has not sought the writ on this ground. His restraint is well founded. The
federal courts themselves are not free of reliance on this kind of “coercion”—though normally on
a less brutal scale. The Sentencing Guidelines provide a substantial “benefit/penalty” in the form
of a three point adjustment for acceptance of responsibility by pleading guilty. USSG § 3E1.1;
see also Ronald F. Wright, Trial Distortion and the End of Innocence in Federal Criminal Justice,
154 U. Pa. L. Rev. 79, 130-31 (2005) (“One key accomplishment of the federal sentencing
guidelines was to make the plea discounts more certain.”).
Such “coercion” is treated by the courts as not so shocking as to constitute cruel and
unusual punishment. See U.S. Const. amend. VIII; cf. U.S. Const. amends. VI (right to trial by
jury) & XIV (right to due process of law); Coles v. United States, 682 A.2d 167, 169 (D.C. 1996)

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(“The line between affording leniency to a defendant who has admitted guilt by pleading guilty
and punishing one who has denied his guilt and proceeded to trial is elusive, to say the least.”).
Moreover, the Supreme Court has not specifically declared this as a grounds for habeas
relief—a requirement under 28 U.S.C. § 2254. See Williams v. Taylor, 529 U.S. 362, 412 (2008)
(defining “clearly established Federal law” as holdings of Supreme Court decisions); see also
Corbitt v. New Jersey, 439 U.S. 212, 223 (1978) (“[A]s the Constitution has been construed in
our cases, it is not forbidden to extend a proper degree of leniency in return for guilty pleas.”).
The court takes judicial notice of the fact that to a large extent the criminal justice system
in the United States depends on offering “benefits/penalties” to defendants to induce them to
forego their right to a jury trial. See, e.g., Laufer v. Cooper, 132 S.Ct. 1376, 1388 (2012)
(“[C]riminal justice today is for the most part a system of pleas, not a system of trials.”). The
number of judges and trial courts available in this country, including New York State and federal
courts, is grossly insufficient to support trials in any substantial percentage of charged cases.
See, e.g., Warren Burger, The State of the Judiciary, 56 A.B.A. J. 929, 931 (1970) (“A reduction
from 90 percent to 80 percent in guilty pleas requires the assignment of twice the judicial
manpower and facilities—judges, court reporters, bailiffs, clerks, jurors and courtrooms. A
reduction to 70 percent trebles this demand.”); see also George Fisher, Plea Bargaining’s
Triumph: A History of Plea Bargaining in America (2003) (arguing plea bargaining has grown to
handle mounting caseloads).
Benefits/penalties in pleading account in large measure for our plea rate. “Ninety-seven
percent of federal convictions and ninety-four percent of state convictions are the result of guilty
pleas.” Laufer, 132 S.Ct. at 1388; see also, United States Sentencing Commission, Statistical
Information, Fiscal Year 2012, State of New York, Table 2 Guilty Pleas and Trials in Each

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Primary Offense Category, p. 3, (October 1, 2011, through September 30, 2012),
http://www. ussc.gov/Data_and_ Statistics/Federal_Sentencing_Statistics/State_District_Circuit/2
012/ny12.pdf (2012 pleas and trials in each circuit and district); Dept. of Justice, Bureau of
Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts,
2006-Statistical Tables, p. 1 (NCJ226846, rev. Nov. 2010), http://bjs.ojp.usdoj.gov/content/pub
/pdf/fssc06st.pdf ("Most (94%) felony offenders sentenced in 2006 pleaded guilty.").
IV.

Conclusion
There is no basis for granting the petition as amended. It is dismissed. The court

incorporates and adopts the reasoning in its October 16, 2003 and April 16, 2012 Orders. A
certificate of appealability on the new issue of ineffective assistance of counsel is denied.

SO ORDERED.

J ck B. Weinstein
enior United States District Judge
Date: September 13, 2013
Brooklyn, New York

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