Olson v. Connolly

Filing 23

OPINION AND ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION. For the foregoing reasons, the Amended Report is adopted in full, and the Petition is DENIED. The Clerk of Court shall dismiss the Petition and close the case. Since Petitioner has not mad e a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). So ordered. (Signed by Judge Katherine Polk Failla on 10/13/2016) Copies Mailed By Chambers. (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------X
:
GEORGE OLSON,
:
:
Petitioner,
:
:
v.
:
:
SUPERINTENDENT CONNOLLY,
:
Superintendent of Fishkill Correctional
:
Facility,
:
:
Respondent. :
:
-------------------------------------------------------X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: October 13, 2016
______________

15 Civ. 6498 (KPF) (SJN)
OPINION AND ORDER
ADOPTING AMENDED
REPORT AND
RECOMMENDATION

KATHERINE POLK FAILLA, District Judge:
Petitioner George Olson (“Petitioner”), who is proceeding pro se and is
currently incarcerated, filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 (the “Petition” or “Pet.”) on August 18, 2015, against
Superintendent William Connolly of the Fishkill Correctional Facility in Beacon,
New York. 1 In it, Petitioner seeks review of his New York State Supreme Court
convictions for two counts of burglary in the third degree, in violation of New
York Penal Law (“NYPL”) § 140.20. United States Magistrate Judge Sarah
Netburn issued an Amended Report and Recommendation dated April 15, 2016
(the “Amended Report” or “Am. Report”), recommending that the Petition be
denied. The Court has considered both the Amended Report and Petitioner’s
May 11, 2016 Objection to the Report (the “Objection” or “Obj.”), and finds that

1

In August 2015, Connolly was replaced by Robert Cunningham as Superintendent of
the Fishkill Correctional Facility.

the Amended Report should be adopted in full. Accordingly, the Petition is
denied.
BACKGROUND 2
The facts and procedural history of the instant action are set forth in the
Amended Report. (Dkt. #20). Nonetheless, a brief summary of the relevant
facts is useful to this Court’s analysis.
Petitioner was arrested after being identified as the perpetrator of one or
more burglaries that took place on April 24 and 25, 2010, at 201 West 95th
Street in Manhattan. (SR 1-3). Two criminal complaints, the first sworn out
on April 30, 2010, and the second sworn out on October 4, 2010, addressed
Petitioner’s conduct that evening. In the first complaint, Petitioner is alleged to
have broken into a restaurant on the premises on April 25, 2010, and stolen a
cash register drawer, a key ring, and multiple credit cards. (Id. at 2).
Surveillance footage revealed that Petitioner had broken into the restaurant the
preceding day; unlawfully accessed multiple employee lockers and a walk-in
refrigerator; and stolen “a bottle of wine, a bouquet of roses and a calculator.”
(Id. at 3). In the second complaint, Petitioner is alleged to have entered a youth
hostel at that same location on April 24, 2010, without permission to enter or

2

In addition to citing the Petition (Dkt. #1), the State’s Opposition (“Opp.,” Dkt. #9-10),
Petitioner’s Reply (“Reply,” Dkt. #15), the Amended Report (Dkt. #20), and Petitioner’s
Objection (Dkt. #22), this Opinion draws on information from the State Record (“SR
[page],” Dkt. #10), with citations corresponding to the State’s Bates numbers. The
Court previously received an initial Report and Recommendation (Dkt. #16), and
objections to that Report from the State (Dkt. #18). In light of the Report’s amendment
in response to the State’s objections and the Court’s subsequent receipt of objections
from Petitioner alone, the Court limits its evaluation to the Amended Report.

2

remain, after which he went into the hostel’s basement, which was “off-limits to
all persons other than hostel employees.” (Id. at 3).
The two complaints were resolved in a single indictment (the
“Indictment”), charging Petitioner with one count of second-degree burglary, in
violation of NYPL § 140.25(2), 3 and one count of third-degree burglary, in
violation of NYPL § 140.20. 4 The indictment was not clear that the two counts
pertained to different “buildings” at the same address. (Am. Report 2; SR 4-5).
See N.Y. Penal Law § 140.00 (McKinney) (defining “building” to include
separately enclosed units within a single structure).
Significantly, had Petitioner been convicted of second-degree burglary, he
would have been deemed a mandatory persistent violent felony offender under
New York law, subject to a minimum sentence of 16 years’ to life
imprisonment. (SR 62). Pursuant to negotiations between Petitioner’s trial
counsel and the prosecution, however, Petitioner was permitted to plead guilty
to two counts of third-degree burglary — the aggregate prison term of which
was substantially less than 16 years to life — and the prosecution dismissed
the second-degree burglary charge. (Am. Report 2). To accomplish this plea
bargain, on October 13, 2010, the prosecution filed a Superior Court
Information (“SCI”) that charged Petitioner with third-degree burglary; the SCI

3

See N.Y. Penal Law § 140.25(2) (McKinney) (“A person is guilty of burglary in the second
degree when he knowingly enters or remains unlawfully in a building with intent to
commit a crime therein, and when: . . . 2. The building is a dwelling.”).

4

See N.Y. Penal Law § 140.20 (McKinney) (“A person is guilty of burglary in the third
degree when he knowingly enters or remains unlawfully in a building with intent to
commit a crime therein.”).

3

stated, in relevant part, that Petitioner had “knowingly entered and remained
unlawfully in a building, the Westside Pearl Youth Hostel, located at 201 West
95th Street with intent to commit a crime therein.” (SR 7).
Also on October 13, 2010, Petitioner waived indictment and pleaded
guilty to two counts of third-degree burglary, one of which was specified in the
indictment and the other of which was specified in the SCI. (SR 8-17). During
the plea colloquy, Petitioner confirmed that he was pleading guilty to a burglary
“ha[ving] to do with the Westside Pearl Youth Hostel,” in addition to “another
charge against [him] for the same date and same address which ha[d] to do
with a restaurant next door, or at the same address, but a different enclosure.”
(Am. Report 2-3 (citing SR 11-12)).
The factual allocution of Petitioner’s plea proceeded as follows:
THE COURT: [ . . . ] So, Mr. Olson, on April 24, 2010
at 201 West 95th Street, you went into the basement
at that address?
THE DEFENDANT: Yes.
THE COURT: And you knew you weren’t supposed to
go in there.
THE DEFENDANT: Yes.
THE COURT: How did you know that?
THE DEFENDANT: I guess I had no business being
there.
[...]
THE COURT: Now, did you go down into the basement
through the youth hostel?
THE DEFENDANT: I didn’t know it was a youth hostel.
When you first walk in the entrance, there’s a desk
4

there. Then the basement is right there….
The
basement is all restaurant equipment. It’s all connected
to the restaurant on the side.
THE COURT: Well, you went into the basement through
the youth hostel, that you may not have known it was a
youth hostel.
THE DEFENDANT: Yes.
THE COURT: Then you went to the restaurant side of
the basement.
THE DEFENDANT: Right.
THE COURT: And you went into the youth hostel side
of the basement to see if there was anything down there,
and then you went over into the other basement, right?
THE DEFENDANT: Well, yeah, it’s all connected.
(SR 12-14). The trial court adjudicated Petitioner a predicate felony offender;
the court also explained that each count of conviction carried a minimum
sentence of two to four years and a maximum sentence of three-and-one-half to
seven years, the terms of which would be consecutive because Petitioner faced
“two separate counts of burglary, because of the two locations that you went
into unlawfully with the intent to commit a crime.” (Id. at 14-15). Petitioner
confirmed his understanding. (Id. at 16). The court also emphasized that
Petitioner could face a life sentence were he convicted of second-degree
burglary, and asked whether Petitioner “underst[ood] that this [was] a great
degree of leniency that[] [was] being extended to [him]”; Petitioner again
confirmed he understood. (Id. at 15). The court then accepted Petitioner’s
plea. (Id. at 17).

5

On October 27, 2010, Petitioner was sentenced principally to the agreedupon sentence of two consecutive terms of three and one-half to seven years’
imprisonment. (SR 18-20).
Petitioner appealed from his sentence, contending that it violated the
constitutional prohibition against double jeopardy, in that he was convicted of
two crimes arising from the same unlawful entry. (Am. Report 4). In an
opinion issued April 1, 2014, the Appellate Division held that Petitioner’s claim
was “unpreserved and waived,” and, alternatively, that Petitioner had “made
successful unlawful entries into two places, each constituting a separate and
distinct ‘building’ under the definition contained in NYPL § 140.00(2), and thus
committed two separate crimes.” (Id. (citing People v. Olson, 982 N.Y.S.2d 760,
760 (1st Dep’t 2014); see also SR 89-90). Petitioner’s appellate counsel
submitted a leave application to the Court of Appeals (SR 91-97), and Petitioner
filed a pro se supplemental letter raising his double jeopardy claim (id. at 9899). By order dated August 12, 2014, the Court of Appeals denied leave to
appeal. (Id. at 106). 5

5

Separately, Petitioner filed a petition for a writ of error coram nobis, asserting that his
appellate counsel had been ineffective by virtue of (i) raising a multiplicity claim, which
Petitioner contended undermined his constitutional double jeopardy claim; and
(ii) failing to argue the unconstitutionality of the preservation requirement as applied to
Petitioner’s case. (SR 107-18). Petitioner’s application was denied (id. at 147), and
leave to appeal was also denied (id. at 155).

6

THE STANDARD OF REVIEW
A court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). A court may
accept those portions of a report to which no “specific, written objection is
made,” as long as the factual and legal bases supporting the findings are not
clearly erroneous. See Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513
(S.D.N.Y. 1997) (quoting Fed. R. Civ. P. 72(b)); see also Thomas v. Arn, 474 U.S.
140, 149 (1985). A magistrate judge’s decision is clearly erroneous only if the
district court is “left with the definite and firm conviction that a mistake has
been committed.” Easley v. Cromartie, 532 U.S. 234, 235, 242 (2001) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
To the extent that a petitioner makes specific objections to a magistrate
judge’s findings, the reviewing court must undertake a de novo review of the
objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); United States v.
Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pro se filings are read liberally
and interpreted “to raise the strongest arguments that they suggest.” Pabon
v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (internal quotation marks and
citation omitted). However, where objections are “conclusory or general,” or
where the petitioner “simply reiterates his original arguments,” the report
should be reviewed only for clear error. Walker v. Vaughan, 216 F. Supp. 2d
290, 292 (S.D.N.Y. 2002) (internal quotation marks and citation omitted).

7

DISCUSSION
A.

Olson’s Petition for Habeas Relief
Petitioner claims that his “[t]wo burglary convictions violated the

prohibition against multiple punishments for the same offense under the U.S.
Constitutional Double Jeopardy Clause.” (Pet. 5). As Petitioner argues, the
charging documents and plea allocution establish only a single offense of
burglary, yet “the prosecutor created two separate burglaries of the single entry
into the one basement that had no dividing walls.” (Id. at 5, 15). Petitioner
further states that the Appellate Division’s application of People v. Gonzalez, 99
N.Y.2d 76, 82 (2002), to his case to find procedural bar was in error, as
Gonzalez speaks only to cases where defendants received concurrent
sentences, “eliminat[ing] any issue of multiple punishments.” (Id. at 16).
Petitioner argues that his case does not present the “question[s] of statutory
interpretation” requiring preservation that are referenced by the Court of
Appeals in Gonzalez. (Id.). Additionally, citing United States v. Broce, 488 U.S.
563 (1989), and Menna v. New York, 423 U.S. 61 (1975), Petitioner contends
that a double jeopardy violation in his case was apparent from the face of the
record when his plea was entered, and thus preservation was not required and
no waiver could be had. (Id.).
Separately, Petitioner contends that the Appellate Division erred in “not
clarify[ing] what areas they were deciding appellant plead[ed] guilty to
burglarizing,” in that the prosecutor and Petitioner contradicted each other as
to the relevant burglarized areas. (Pet. 16). As Petitioner further states, a
8

guilty plea to burglarizing a basement with “two sides” would be invalid, as the
record made clear that the basement was “a single, undivided unit, which
could be accessed by both the restaurant and hostel.” (Id.). Indeed, Petitioner
argues that during his direct appeal, Respondent “conceded that the basement
was only one burglary by arguing that the initial entry into the lobby was
considered a separate burglary,” but the Appellate Division did not clarify
whether they adopted this formulation of the two burglaries, or whether they
considered the burglary of the basement to constitute two separate crimes. (Id.
at 17). Petitioner contends that the prior formulation would be legally
erroneous, as the lobby “was open to the public” and thus any entry could not
underlie a burglary charge. (Id.). In any event, Petitioner states, he did not
plead guilty to an unlawful entry into the lobby. (Id.).
B.

The Amended Report
In the Amended Report, Judge Netburn recounted the procedural history

of Petitioner’s criminal case, including the substance of the charging
documents, Petitioner’s guilty plea proceeding, and Petitioner’s direct appeal.
(Am. Report 1-4). Judge Netburn then determined that Petitioner’s claim was
procedurally barred based on the New York Court of Appeals’ preservation
requirement for double jeopardy claims alleging “multiple punishments for the
same offense.” (Id. at 6 (citing Gonzalez, 99 N.Y.2d at 82)). 6 Because this rule

6

See People v. Gonzalez, 99 N.Y.2d 76, 82 (2002):
The Double Jeopardy Clause consists of three separate guarantees:
[i] “It protects against a second prosecution for the same offense
after acquittal. [ii] It protects against a second prosecution for the

9

is consistently followed by New York State courts, Petitioner’s claim was barred
by an adequate and independent state law ground. (Am. Report 6-7).
Progressing to a review of the merits of Petitioner’s claim, Judge Netburn
concluded that the state court’s determination was not an unreasonable
application of federal law: Petitioner “validly entered a guilty plea, [so] he
essentially [ ] admitted he committed the crime charged against him, [which]
results in a waiver of double jeopardy claims.” (Am. Report 7-8 (citing United
States v. Kurti, 427 F.3d 159, 162 (2d Cir. 2005)). Judge Netburn concluded
that Petitioner’s “plea colloquy made clear that he understood that he was
pleading guilty to two separate crimes, charged in two separate charging
instruments.” (Am. Report 9).
With particular respect to Petitioner’s argument concerning the exception
articulated in Menna, 423 U.S. at 62 n.2, for a charge that “judged on its face
[ ] is one which the State may not constitutionally prosecute,” Judge Netburn
determined that “[t]he charging documents were facially valid,” and the
criminal complaint “ma[de] clear that each charge refer[red] to separately
occupied units — the hostel and the restaurant,” and Petitioner therefore made
separate unlawful entries into the hostel, its basement, and the adjacent
restaurant basement. (Am. Report 9-10). Moreover, as stated in the Amended
Report, “[i]f the record showed that Olson did not understand that he made two

same offense after conviction. [iii] And it protects against multiple
punishments for the same offense”.
Id. (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)) (alterations added);
accord Illinois v. Vitale, 447 U.S. 410, 415 (1980).

10

separate unlawful entries, then he might be entitled to argue that his plea was
not made knowingly.” (Id. at 10). Here, by contrast, it was obvious that
Petitioner’s arguments were strategic — he deliberately refrained from seeking
a vacatur of his plea “because he does not want his plea revoked, which would
expose him to a renewed second degree burglary charge.” (Id.).
C.

Petitioner Is Not Entitled to Habeas Relief 7
1.

Petitioner’s Claim Is Procedurally Barred

Federal courts are generally not permitted to “review questions of federal
law presented in a habeas petition when the state court’s decision rests upon a
state-law ground that ‘is independent of the federal question and adequate to
support the judgment.’” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting
Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The procedural bar applies
even if the state court addressed the merits of the claim in the alternative.
Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam).
A state law ground is deemed “adequate” if the rule “is firmly established
and regularly followed by the state in question.” Whitley v. Ercole, 642 F.3d
278, 286 (2d Cir. 2011) (quoting Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.
1999)). The Second Circuit has repeatedly found that New York’s
contemporaneous objection rule, N.Y. Crim. Pro. Law § 470.05(2), 8 is an

7

As a factual matter, Petitioner’s objection to “page 2, para. 2 of the Report which views
the original indictment as being clear that the two burglaries were against different
businesses” (Pet. Obj. 2), reflects a misreading of the Amended Report, which in fact
states that “[t]he indictment did not make clear that the two burglaries were against
different businesses” (Am. Report 2 (emphasis added)).

8

See N.Y. Crim. Proc. Law § 470.05(2):

11

adequate and independent bar to federal habeas review. See, e.g., Whitley, 642
F.3d at 292; Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011); see generally
Garcia, 188 F.3d at 79 (“[W]e have observed and deferred to New York’s
consistent application of its contemporaneous objection rules.”).
Claims that are subject to a procedural bar may be addressed only if the
petitioner demonstrates cause for the default and resulting prejudice, or that
failure to consider the claim will result in a fundamental miscarriage of justice.
Harris v. Reed, 489 U.S. 255, 262 (1989). Petitioner here does neither, but
rather challenges the Appellate Division’s (and Judge Netburn’s) interpretation
of the relevant case law, and, more specifically, the cases on which they relied
in finding New York’s contemporaneous objection rule to have applied:
Petitioner argues that these cases are inapposite because the defendants there
received concurrent, rather than consecutive, sentences. (Pet. Obj. 1).
Petitioner is correct that certain of those cases referenced the defendants’
receipt of concurrent sentences as additional confirmation that a “multiple

For purposes of appeal, a question of law with respect to a ruling
or instruction of a criminal court during a trial or proceeding is
presented when a protest thereto was registered, by the party
claiming error, at the time of such ruling or instruction or at any
subsequent time when the court had an opportunity of effectively
changing the same. Such protest need not be in the form of an
“exception” but is sufficient if the party made his position with
respect to the ruling or instruction known to the court, or if in
[response] to a protest by a party, the court expressly decided the
question raised on appeal. In addition, a party who without
success has either expressly or impliedly sought or requested a
particular ruling or instruction, is deemed to have thereby
protested the court’s ultimate disposition of the matter or failure to
rule or instruct accordingly sufficiently to raise a question of law
with respect to such disposition or failure regardless of whether
any actual protest thereto was registered.

12

punishments” situation was not at issue. See, e.g., People v. Gonzalez, 279
A.D.2d 273, 274 (1st Dep’t 2001), aff’d, 99 N.Y.2d 76 (2002). His argument,
however, overlooks the independent determination of the Appellate Division
that Gonzalez’s claim fit within the bounds of the contemporaneous objection
rule as it applied to the third category of double jeopardy claims — those
asserting claims for multiple punishments, which that court found must be
preserved — and thus that its decision did not rest on Gonzalez’s receipt of
concurrent sentences. See Gonzalez, 279 A.D.2d at 274 (“The prohibition
against double jeopardy is not implicated when a defendant receives
cumulative or multiple punishments for the same offense in a single
prosecution as opposed to successive prosecutions.… Moreover, [defendant]
received concurrent sentences, thereby eliminating any issue of multiple
punishments.” (internal citation omitted) (emphasis added)).
The Court of Appeals’ affirmance of the Gonzalez case articulated the
contemporaneous objection rule in a manner that likewise did not hinge on the
concurrence vel non of the defendant’s sentences:
These cases, as contrasted with [retrial after conviction
or retrial after acquittal], turn not on the jurisdiction or
authority of the court but on whether the Legislature
intended to authorize such multiple punishments. That
question may only be reached following a threshold
determination of what punishments the Legislative
Branch has authorized. As long as the Legislature
intended to impose cumulative punishments for a single
offense, a court’s task of statutory construction is at an
end and no constitutional double jeopardy claim is
implicated.

13

Since the permissibility of multiple punishments in this
situation
presents
a
question
of
statutory
interpretation, a defendant is required to preserve such
a claim.
Gonzalez, 99 N.Y.2d at 82-83. Petitioner’s case fits squarely within the
language and the spirit of this rule. 9 Although he cites his “multiple
punishments” as a concern not arising in cases involving concurrent terms
(Pet. Obj. 1), the very rule articulated in Gonzalez references “multiple
punishments … [as] a question of statutory interpretation” that must be
preserved, see Gonzalez, 99 N.Y.2d at 82-83. Accordingly, Petitioner cannot
distinguish his case from the independent and adequate state ground — the
contemporaneous objection rule as applied to double jeopardy claims asserting
multiple punishments. This firmly established rule applies, and Petitioner’s
double jeopardy claim is procedurally barred.
2.

Petitioner’s Claim Fails on the Merits

The Appellate Division also rejected Petitioner’s double jeopardy claim on
the merits; Judge Netburn considered them in the Amended Report, and this
Court considers them as well. Habeas relief is warranted only if the Appellate

9

On the latter point, the Second Circuit has observed that the contemporaneous
objection rule
has been interpreted by New York courts to require, at the very
least, that any matter which a party wishes to preserve for
appellate review be brought to the attention of the trial court at a
time and in a way that gave it the opportunity to remedy the
problem and thereby avert reversible error.
Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011) (internal quotation marks and
alteration omitted). Here, Petitioner’s strategic decision not to raise a concern that the
plea bargain offered by the State would subject him to multiple convictions for a single
burglary deprived the trial court of an opportunity to delve into Petitioner’s concerns
about the factual circumstances of each unlawful entry in an effort to clarify any issues.

14

Division’s ruling was either: (i) contrary to Supreme Court precedent; or (ii) a
misapplication thereof. 28 U.S.C. § 2254(d). Here, Petitioner focuses on the
Appellate Division’s finding that he pleaded to “successive unlawful entries into
two places” (SR 90), and on the record evidence that courts, particularly this
Court, may consider in making that determination.
Bound up in an evaluation of the merits of Petitioner’s claim is the issue
of waiver, and for this reason they are discussed together. “[T]he rights
afforded by the Double Jeopardy Clause are personal and can be waived by a
defendant.” United States v. Mortimer, 52 F.3d 429, 435 (2d Cir. 1995). That
said, a “narrow exception to the waiver rule” applies “when a double jeopardy
claim is so apparent either on the face of the indictment or on the record
existing at the time of the plea that the presiding judge should have noticed it
and rejected the defendant’s offer to plead guilty to both charges.” Kurti, 427
F.3d at 162. In other words, unless it is obvious that Petitioner could not plead
guilty to the charges in both the Indictment and the SCI, he has waived his
right to raise a double jeopardy claim.
Petitioner’s gripe is less with this principle of law than with the
documents a court may consider in evaluating whether a putative waiver is
valid, or whether multiple charges are in fact barred by the Double Jeopardy
Clause. He takes issue with the Amended Report’s interpretation of the
Supreme Court’s statement in Menna, 423 U.S. at 62 n.2, that “[a] guilty
plea … renders irrelevant those constitutional violations not logically
inconsistent with the valid establishment of factual guilt and which do not
15

stand in the way of factual guilt if validly established.” Id.; see also id. (“We do
not hold that a double jeopardy claim may never be waived. We simply hold
that a plea of guilty to a charge does not waive a claim that judged on its face
the charge is one which the State may not prosecute.”). Specifically, Petitioner
argues that both federal and New York State case law counsel courts to
evaluate whether a “charge is one which the State may not prosecute” by
looking to both the charging documents and the record at the plea hearing (Pet.
Obj. 1-2), whereas the Amended Report stated that “[c]ontrolling Supreme
Court case law instructs a court to look to the jurisdictional sufficiency of the
charging instruments when judging [Petitioner’s] double jeopardy claim, and
his plea allocution is irrelevant” (Am. Report 10 (citing Menna, 423 U.S. at 62
n.2)).
While this Court finds Menna somewhat unclear on this point, in a later
case on the subject, the Supreme Court indicated that a “determination that
the second indictment could not go forward should have been made by the
presiding judge at the time the plea was entered on the basis of the existing
record.” Broce, 488 U.S. at 575 (emphasis added). The Broce Court recounted
two prior decisions: (i) the Menna Court’s determination that the indictment
there ‘was facially duplicative of [an] earlier offense,” thus prohibiting the State
from pursuing that charge, in addition to (ii) the Court’s earlier decision in
Blackledge v. Perry, 417 U.S. 21 (1974), which determined that “the
concessions implicit in the defendant’s guilty plea were irrelevant [there],
because the constitutional infirmity … lay in the State’s power to bring any
16

indictment at all.” Id. at 575-76. Then, examining the underlying proceedings
in Broce, the Court found that the “indictments [ ] on their face described
separate conspiracies,” obviating double jeopardy concerns. Id. at 576. Thus,
neither in Broce nor in the cases it examined were the trial courts required to
look outside the charging documents, and the Broce Court in fact stated that
“[j]ust as a defendant who pleads guilty to a single count admits guilt to the
specified offense, so too does a defendant who pleads guilty to two counts with
facial allegations of distinct offenses concede that he has committed two
separate crimes.” Id. at 570.
The quoted passages suggest, as Judge Netburn found, that the Court
should look only to the charging documents. Nonetheless, because it has some
merit, the Court will consider Petitioner’s argument that the term “existing
record” also encompasses his plea proceedings. See Kurti, 427 F.3d at 162
(interpreting Broce to permit consideration of both documents and plea
minutes). Relatedly, the Court has considered Petitioner’s contention that the
Court may look only to the Indictment and the SCI — the documents
containing the charges to which he pleaded — rather than the criminal
complaint referenced by the Amended Report. (Pet. Obj. 2-3). Again, in an
abundance of caution, the Court will evaluate Petitioner’s double jeopardy
arguments by consulting only the Indictment, the SCI, and the record of
Petitioner’s plea hearing. However, even on this record, the Court concurs with
the conclusion found in the Amended Report that the Appellate Division’s
decision was not contrary to law.
17

While neither the Indictment nor the SCI explicitly references the
restaurant basement, Petitioner’s plea colloquy evinces his full awareness that
he was pleading to separate charges of burglarizing the hostel and the
restaurant basement, and why he was so pleading. For starters, Petitioner
pleaded guilty to charges in two separate charging instruments; with respect to
the SCI, he was specifically allocuted on his waiver of the right to proceed by
indictment on this separate charge. (SR 9-11). As the colloquy proceeded,
when asked how he pleaded to the first charge of burglary at the Westside Pearl
Youth Hostel, Petitioner stated that he pleaded guilty. (Id. at 11-12). Then,
when asked about the second charge, relating to “the same date and same
address which has to do with a restaurant next door, or at the same address,
but a different enclosure,” Petitioner again stated that he pleaded guilty. (Id. at
12). In the face of this clarity — underscored by the trial court’s reference to
the generous plea bargain offered by the prosecution, which was termed “a
great degree of leniency” (see id. at 15) — Petitioner now presses that his
factual allocution demonstrates that the two burglary charges subjected him to
double jeopardy (Pet. Obj. 3). As Petitioner argues, his allocution shows that
“the basement was one interrupted space,” and accordingly, Petitioner could
commit only one burglary. (Id.). From this he argues that he could not
constitutionally plead guilty to both the Indictment and the SCI, and that he
further could not waive any double jeopardy claim inhering in his plea.
Petitioner is wrong. His plea allocution does not definitively show that
the charges were duplicative ones that the State could not bring. Although
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Petitioner stated that the basement was “all restaurant equipment” and that it
was “all connected,” he simultaneously admitted that he “went into the
basement through that youth hostel,” where he “had no business being,” and
that after entering, he “went to the restaurant side of the basement.” (SR 1214). Moreover, when asked whether he “went into the youth hostel side of the
basement to see if there was anything down there, and then [ ] went over into
the other basement,” Petitioner responded, “[w]ell, yeah, it’s all connected.” (Id.
at 14).
Petitioner’s allocution does not leave this Court with a firm conviction
that the Appellate Division’s reasoning was “contrary to, or involved an
unreasonable application of, clearly established federal law,” 28 U.S.C.
§ 2254(d), insofar as it found Petitioner “made successive unlawful entries into
two places.” (SR 89-90). Rather, the Court understands Petitioner’s
statements about finding restaurant equipment in the basement and that the
hostel and restaurant portions of the basement to have been “connected” not to
have eliminated the possibility that the two sides of the basement had separate
entries or were separate enclosures, albeit “connected.” Such a finding would
comport with the New York Penal Law’s definition, which states that “[w]here a
building consists of two or more units separately secured or occupied, each
unit shall be deemed both a separate building in itself and a part of the main
building.” NYPL § 140.00(2). Insofar as Petitioner contends that the hostel was
not using the basement area for carrying on business, which he alleges would
exclude it from the definition of a building, such contention would require
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resort to evidence outside the record, which is not appropriate at this stage.
Accordingly, the Appellate Division’s determination is not clearly contrary to
Menna’s proscription of charges that could not go forward on the basis of the
existing record. 10 For all of these reasons, the Appellate Division’s
determinations that (i) Petitioner had waived his right to bring a double
jeopardy challenge, and (ii) there was no constitutional violation in his pleas to
both the Indictment and the SCI will be upheld.
CONCLUSION
For the foregoing reasons, the Amended Report is adopted in full, and the
Petition is DENIED. The Clerk of Court shall dismiss the Petition and close the
case.
Since Petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is
denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438,
444-45 (1962).

10

In light of the Court’s determination that Petitioner’s entry into and burglary of the
basement amounted to separate crimes, as evidenced by his plea colloquy, the Court
need not consider Petitioner’s contention regarding whether the hostel’s lobby was open
to the public. (See Pet. Obj. 2-3). The Court notes, however, that such determination
would require resort to evidence outside the record at the time of the plea proceeding,
which would not be appropriate under Menna and Broce.

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SO ORDERED.
Dated:

October 13, 2016
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

Sent by First Class Mail to:
George Olson
10-A-5225
Fishkill Correctional Facility
P.O. Box 1245
Beacon, NY 12508

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