Hoover v. State of N. Y., 139

Citation607 F.2d 1040
Decision Date12 October 1979
Docket NumberD,No. 139,139
PartiesDavid HOOVER, Petitioner-Appellant, v. The STATE OF NEW YORK, Respondent-Appellee. ocket 79-2055.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

David Blackstone, New York City, for petitioner-appellant.

Charles S. Kleinberg, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., George D. Zuckerman, Asst. Sol. Gen., New York City, of counsel), for respondent-appellee.

Before LUMBARD, FRIENDLY and GURFEIN, Circuit Judges.

PER CURIAM:

Petitioner-appellant David Hoover appeals from an order entered on March 28, 1979 by the District Court for the Southern District of New York, John M. Cannella, Judge, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 because he had not been properly apprised of all elements of the crime to which he had pleaded guilty. Judge Cannella decided that appellant had waived his right to complain on this score by failing to raise the point in the New York courts in his direct appeal from the judgment of conviction, but granted a certificate of probable cause.

Appellant pled guilty on May 16, 1973 in New York State Supreme Court, Bronx County (Tonetti, J.) to one count of robbery in the first degree, a Class B felony in Indictment No. 1018/1973 in satisfaction of this and seven other pending indictments which contained ninety-one counts.

The crime of robbery in the first degree is defined in New York Penal Law § 160.15 in pertinent part as follows:

A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:

1. Causes serious physical injury to any person who is not a participant in the crime; or

2. Is armed with a deadly weapon; or

3. Uses or threatens the immediate use of a dangerous instrument; or

4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm The maximum sentence for robbery in the first degree is an indeterminate term of 81/3 to 25 years imprisonment. New York Penal Law § 70.00(2)(b), (3)(b). The crime of robbery in the second degree does not require a threat to use a dangerous weapon, is a Class C felony, and carries a maximum sentence of 5 to 15 years. New York Penal Law §§ 160.10, 1 70.00(2)(c), (3)(b).

On the allocution by Justice Tonetti, appellant was asked whether he admitted that "on January 13, 1973, together with (his) co-defendants (he) forcibly stole property from one Ansel Grau." Although the indictment charged that the appellant was "armed with and used and threatened the immediate use of a dangerous instrument, to wit, knives," he was not asked whether he admitted this particular allegation. Justice Tonetti sentenced Hoover to the maximum term authorized for robbery in the first degree. After sentence was imposed, counsel moved to withdraw the guilty plea on the ground that the court had conditionally agreed to impose less than the maximum sentence. The court categorically denied that any such agreement had been made and denied the motion.

Appellant appealed to the Appellate Division, First Department on four grounds, none of which was that he was improperly sentenced for the commission of robbery in the first degree though he had not been informed of or admitted an essential element of that Class B felony. 2 The Appellate Division unanimously affirmed the conviction on March 3, 1975, and leave to appeal to the Court of Appeals was denied on May 2, 1975.

On June 17, 1976 the United States Supreme Court decided Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) holding that a plea of guilty to second degree murder without adequate notice to the defendant that he was admitting an essential element of that offense, intent to cause death, was involuntary and that the judgment of conviction was entered without due process of law.

In December 1976 Hoover filed a Pro se motion to vacate the judgment of conviction in the Supreme Court, Bronx County, and for assignment of counsel. Although Hoover based his attack on the failure of the trial judge to inform him of all the material elements of the crime of robbery in the first degree, he did not cite the decision in Henderson v. Morgan, supra, but relied instead on state decisions.

The motion was answered by two affirmations of the prosecution, each contending that Hoover had forfeited his right to present his claim because of his "unjustified" failure to raise the issue on his direct appeal. N.Y.Crim.Proc.L. § 440.10(2)(c). 3 In neither of these affirmations did the State refer to the Morgan decision which had come down only after Hoover's direct appeal had been decided. On January 12, 1977 Justice Tonetti denied Hoover's post-judgment motion on the procedural default ground urged by the State.

On February 10, 1977 Hoover filed a Pro se motion for a certificate granting leave to appeal to the Appellate Division. Hoover contended simply that he should not be bound by his lawyer's mistakes; the State contended that he should be. No one informed the court that Hoover might have had a "justifiable" excuse for not making his point on his direct appeal, either on the ground that there was no adequate record on which he could have made the point then, or that under the state of the law before Morgan, an effort to rely on its doctrine would have been futile. The Presiding Justice of the Appellate Division, Hon. Francis T. Murphy, Jr., denied leave to appeal.

In May, 1977, Hoover petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of New York, Pro se, contending that his guilty plea was constitutionally defective because the material elements of the crime to which he plead guilty had not been explained to him at the hearing for the entry of the guilty plea. Once more, Hoover failed to cite the Morgan case in support of his claim. However, the deputy assistant attorney general alerted the district judge to the Morgan decision in his opposing papers and sought to distinguish Morgan from Hoover's case.

On January 3, 1978 Judge Cannella referred the matter to...

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6 cases
  • Forman v. Smith
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 8 Octubre 1980
    ...courts within this Circuit, United States ex rel. Hoover v. New York, 469 F.Supp. 481 (S.D.N.Y.), aff'd on other grounds, 607 F.2d 1040 (2d Cir. 1979) (per curiam ); United States ex rel. Carbone v. Manson, 447 F.Supp. 611 (D.Conn.1978); Frazier v. Czarnetsky, 439 F.Supp. 735 (S.D.N.Y.1977)......
  • Santana v. Fenton
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 23 Julio 1982
    ...should defer action only if there is some reasonable probability" that state court would entertain claim); Hoover v. New York, 607 F.2d 1040, 1042 (2d Cir. 1979) (per curiam) (requiring exhaustion where unavailability of state remedies is "not utterly clear"); Eaton v. Wyrick, 528 F.2d 477,......
  • Twitty v. Smith
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 11 Diciembre 1979
    ...it would waive the § 440.10(2)(c) defense of "unjustifiable failure" in Twitty's case, as it has in some others. See Hoover v. New York, 607 F.2d 1040, 1042 (2d Cir. 1979); cf. Brown v. Wilmot, 572 F.2d 404, 406 (2d Cir. 1978) (Assistant Attorney General promised at oral argument that he wo......
  • Sabino v. LeFevre, 78 Civ. 1775 (ADS).
    • United States
    • U.S. District Court — Southern District of New York
    • 30 Abril 1980
    ...Division." 613 F.2d at 22 (emphasis added). These cases are consistent with prior holdings of the Circuit. E. g., Hoover v. State of New York, 607 F.2d 1040 (2d Cir. 1979) (petitioner claimed in state coram nobis proceeding that he was not informed of all the elements of his crime at time o......
  • Request a trial to view additional results

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