Fambo v. Smith, 300
| Decision Date | 02 November 1977 |
| Docket Number | No. 300,D,300 |
| Citation | 565 F.2d 233 |
| Parties | Leonard FAMBO, Petitioner-Appellant, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent-Appellee. ocket 77-2084. |
| Court | U.S. Court of Appeals — Second Circuit |
Philip B. Abramowitz, Buffalo, N. Y. (Robert C. Macek and Gross, Shuman, Laub & David, Buffalo, N. Y., on the brief), for petitioner-appellant.
Alan R. Sharett, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., and Emanuel M. Kay, Asst. Atty. Gen., New York City, on the brief), for respondent-appellee.
Before LUMBARD, MULLIGAN and MESKILL, Circuit Judges.
Leonard Fambo appeals from an order of the Western District (Curtin, Ch. J.) which dismissed his petition for a writ of habeas corpus. Subsequent to filing his petition in the district court, Fambo exhausted his state court remedies.
In April 1971, an Onondaga County Grand Jury indicted Fambo on two counts for possession of dynamite with intent to use in violation of § 265.05(7) of the New York Penal Law (now § 265.04). The first count alleged that Fambo had such possession on November 29, 1970 and the second count alleged similar possession for December 1, 1970. Subsequently, defendant with his counsel entered into plea negotiations with the district attorney as a result of which it was agreed that, in return for a plea of guilty to the lesser included offense of possessing dynamite, the district attorney would recommend and the court would agree to impose a sentence of five years. At the same time, the district attorney moved to dismiss count one and the plea was taken on count two. Thus, on October 27, 1972 Fambo pleaded guilty to possession of an incendiary device "on or about December 1, 1970" in violation of § 265.05(1) of the Penal Law, then a class D felony. Two months later, County Court Judge Gale sentenced Fambo to an indeterminate term of imprisonment the maximum of which was five years.
On March 27, 1974, at an unrelated trial of Fambo in the District Court for the Western District, it was disclosed that on November 29, 1970, David Stevenson of the Onondaga County Sheriff's Department discovered a tube of dynamite in a field, removed and destroyed its contents, and repacked the tube with sawdust. 1 Both parties here concede that the destroyed dynamite was the same as that which Fambo was charged with possessing. At the time of the plea and sentencing in the instant case, the defendant apparently acted on the belief that the authorities still possessed the dynamite, and that dynamite had been in the tube on both November 29 and December 1, 1970. In any event, at sentencing neither the court nor the defendant was advised of the November 29 removal and destruction of the dynamite.
It is undisputed that Fambo on or about December 1, 1970 possessed the dynamite at the place where it was...
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