Warren v. Montemango

• Decision Date: 09 August 1985
• Docket Number: No. CV 85-2388.,CV 85-2388.
• Citation: 618 F. Supp. 147
• Parties: In the Matter of the Application of Michael W. WARREN, Petitioner for a Writ of Habeas Corpus to Inquire Into the Cause of Detention of Samuel Lockett, Petitioner, v. Albert MONTEMANGO, Warden Brooklyn House of Detention, Respondent.
• Court: U.S. District Court — Eastern District of New York

618 F. Supp. 147

In the Matter of the Application of Michael W. WARREN, Petitioner for a Writ of Habeas Corpus to Inquire Into the Cause of Detention of Samuel Lockett, Petitioner, v. Albert MONTEMANGO, Warden Brooklyn House of Detention, Respondent.

No. CV 85-2388.

United States District Court, E.D. New York.

August 9, 1985.

Michael Warren, Brooklyn, N.Y., for petitioner.

Elizabeth Holtzman, Dist. Atty., Kings County, New York by Debra Petrover, Brooklyn, for respondent.

MEMORANDUM OF DECISION & ORDER

COSTANTINO, District Judge.

Petitioner, Samuel Lockett, moves this court pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus alleging that further criminal proceedings against him will be in violation of the Constitution of the United States. The basis for petitioner's claim is that (a) further prosecution of him is in violation of the Double Jeopardy clause; and (b) further prosecution of him in violation of New York State law is such that he will be denied the fundamental fairness guaranteed to him pursuant to the Due Process provisions of the Fifth and Fourteenth Amendments to the United States Constitution.

FACTS

Petitioner was indicated in Kings County under indictment numbers 46/1981 and 270/1981 for seven counts of Robbery in the First Degree, seven counts of Criminal Use of a Firearm in the First Degree, eleven counts of Robbery in the Third Degree, three counts of Grand Larceny in the Third Degree and one count Criminal Possession of Stolen Property in the Third Degree.

At some point in the proceedings relative to the above-stated indictments, Petitioner advised the court that he was not responsible for his actions by reason of mental disease or defect. Thereafter, petitioner was examined by at least five psychiatrists, only one of whom was chosen by petitioner.

The defendant, in support of his claim that he was not responsible by reason of mental disease or defect, cited his traumatic experience in Vietnam as well as his ingestion of massive quantities of dangerous narcotics.

On April 13, 1983 petitioner tendered a plea of not responsible by reason of mental disease or defect. The court, on April 13, 1983, considered the representations of petitioner's counsel, conversations had by the court with defendant, as well as the findings of the psychiatrists who interviewed petitioner, and accepted the plea of not responsible by reason of mental disease or defect. The respondent District Attorney consented to the court's acceptance of the plea. The court, accordingly, made findings of fact to support its acceptance of the plea.¹

In accordance with N.Y. Criminal Procedure Law § 220.15 a judgment of not responsible by reason of mental disease or defect was entered. The petitioner was thereupon remanded to the custody of the Commissioner of Mental Health for an examination pursuant to N.Y. Criminal Procedure Law § 330.20 for civil commitment proceedings.

Subsequent to the entry of the judgment of acquittal by reason of mental disease or defect, Respondent District Attorney obtained petitioner's military records. These records disclosed that petitioner had never served in Vietnam.

Arguing that a fraud had been perpetrated upon the court, the District Attorney moved to vacate the "plea" of not guilty by reason of mental disease or defect. The motion was granted. People v. Lockett, 121 Misc.2d 549, 468 N.Y.S.2d 802 (Sup.Ct. Kings Co.1983), reversed, sub. nom., In the Matter of Lockett v. Juviler, 102 A.D.2d 869, 477 N.Y.S.2d 37 (2d Dept.1984), reversed, Lockett v. Juviler, 65 N.Y.2d 182, 490 N.Y.S.2d 764, 480 N.E.2d 378 (1985).

In upholding the vacatur of the verdict of acquittal by reason of mental disease or defect, the New York Court of Appeals interpreted CPL 220.15 as follows:

CPL 220.15 creates a procedure resembling plea bargaining but produces a kind of reverse guilty plea. It permits the defendant to enter a plea of "not responsible by reason of a mental disease or defect", if the court and the prosecutor consent (CPL 220.151). Before accepting the plea, the court must be satisfied that the People could establish all the elements of the crime beyond a reasonable doubt but could not meet their burden of proving the defendant's mental responsibility (CPL 220.1559, b). The statute provides that, if accepted by the court, the plea is equivalent to a verdict finding the accused not responsible by reason of a mental disease or defect (CPL 220.153f).

Id. at 184, 490 N.Y.S.2d 764, 480 N.E.2d 378.

Moreover, the Court of Appeals rejected petitioner's argument that the plea could not be vacated in the absence of express statutory authority. The Court of Appeals noted that "CPL 220.60(3) expressly permits a court to vacate a plea of not responsible by reason of mental disease or defect on application of the defendant ... There is no comparable right granted to the People. However, the absence of express statutory authority is not controlling in this instance because the issue presented by the People's application is one over which the courts have inherent power." Id. at 186, 490 N.Y.S.2d 764, 480 N.E.2d 378.

Courts traditionally have inherent power to vacate orders and judgments obtained by fraud or misrepresentation. In this State, that power has been exercised in civil cases (Furman v. Furman, 153 NY 309 47 N.E. 577; Matter of Holden, 271 NY 212 2 N.E.2d 631) and criminal cases (Matter of Lyons v. Goldstein, 290 NY 19 47 N.E.2d 425). This power, it should be noted does not extend to intrinsic fraud, such as perjury at trial, which for policy reasons has been held not to invalidate a judgment. (Jacobowitz v. Herson, 268 NY 130 197 N.E. 169; Matter of Holden, supra 271 N.Y., p. 218 2 N.E.2d 631). However, the power does not extend to a plea obtained by fraud and misrepresentation (Matter of Lyons v. Goldstein, supra.). Thus far, the inherent power to vacate a plea has been exercised upon application of the defendant. But there is no reason why the courts should not vacate a fraudulently obtained plea when the application is made by the prosecutor, provided there is no constitutional impediment.

Id. at 186-87, 490 N.Y.S.2d 764, 480 N.E.2d 378.

The Court of Appeals proceeded to address the constitutional question. In doing so, the court noted that

`the label which the Legislature has attached to the plea is not controlling for double jeopardy purposes (United States v. Martin Linen Supply Co., 430 U.S. 564, 571 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642). It can only be said to constitute an aquittal if it actually represents a resolution of some or all of the factual elements of the crimes charged. (United States v. Martin Linen Supply Co., supra, p. 571 97 S.Ct., p. 1354). In addition, the factual consideration must occur after jeopardy has attached (Serfass v. United States, 420 U.S. 377, 390-392 95 S.Ct. 1055, 1063-1065, 43 L.Ed.2d 265). Jeopardy cannot be said to have attached until the accused has been subjected to the risk of conviction (Serfass v. United States, supra, p. 392 95 S.Ct., p. 1064; Green v. United States, 355 U.S. 184, 187 78 S.Ct. 221, 223, 2 L.Ed.2d 199). In the case now before us, the petitioner never faced that risk during the plea proceedings. Under the statute governing this special plea (CPL 220.15), there were only two options available to the court. First, the court could accept the plea, thus terminating the criminal proceedings and initiating civil commitment proceedings (CPL 220.156). Second, the court could reject the petitioner's plea offer and permit the criminal proceedings to continue in the normal course. In no event could the court make a binding factual finding of the defendant's guilt. Therefore, the trial court correctly held that the double jeopardy clause does not preclude restoration of the criminal charges because jeopardy had not attached when the special plea was accepted. As the Supreme Court has noted: `An accused must suffer jeopardy before he can suffer double jeopardy.' (Serfass v. United States, supra, p. 393 95 S.Ct., p. 1065).

DISCUSSION

The New York Court of Appeals, in reaching its conclusion that vacatur of petitioner's plea was proper, relied, in large measure, upon its analysis of the constitutional prohibition against Double Jeopardy. The Court of Appeals reasoning was premised upon its belief that since the trial court could not "make a binding factual finding of the defendant's guilt," Lockett v. Juviler, 65 N.Y.2d at 187, 490 N.Y.S.2d 764, 480 N.E.2d 378, jeopardy had not attached. The District Attorney argues that the "factual considerations raised by the trial court at the plea proceedings are of no consequence for double jeopardy purposes for without the risk of a determination of guilt, jeopardy did not attach." Respondent's Memorandum of Law in Opposition at 6, citing, Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975).

Respondent's reliance upon Serfass, supra, is inapposite. Serfass is easily distinguished from the proposition espoused by respondent on two grounds.

First, Serfass held at 388, 95 S.Ct. at 1062, that, "in a nonjury trial, jeopardy attaches when the court begins to hear evidence. (citations omitted)." In the present case, for the trial court to have satisfied its duty to insure that the people could have proven, if there were a trial, guilt of the offense beyond a reasonable doubt, the People had to have been "ready for trial." Moreover, for the People to have conceded to the entry of the judgment of acquittal by reason of mental disease or defect, it is not unreasonable to presume that the District Attorney's investigation must have been complete. Accordingly, the trial court proceeded to hear evidence and find facts with respect to the crime charged and the defense offered.

A defendant is acquitted only when, `the ruling of the judge, whatever its label, actually represents a resolution in the defendant's favor correct or not, of some or all of the factual elements of the offense

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