Kirzoncic v. New York, 15-CV-0789 (KMK)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtKENNETH M. KARAS, United States District Judge
PartiesROBERT M. KIRZONCIC, Petitioner, v. THE PEOPLE OF THE STATE OF NEW YORK, Respondent.
Docket NumberNo. 15-CV-0789 (KMK),15-CV-0789 (KMK)
Decision Date02 October 2019

ROBERT M. KIRZONCIC, Petitioner,
v.
THE PEOPLE OF THE STATE OF NEW YORK, Respondent.

No. 15-CV-0789 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 2, 2019


ORDER ADOPTING REPORT & RECOMMENDATION

KENNETH M. KARAS, United States District Judge:

Petitioner Robert M. Kirzoncic ("Petitioner") was charged with one count of criminal sale of a controlled substance in the third degree, a Class B felony pursuant to § 220.39 (1) of the Penal Law of the State of New York, in Dutchess County Court on October 21, 2011. (Affidavit of Bridget R. Steller, Esq. ("Steller Aff.") Ex. 2 (Dkt. No. 8-2).) Petitioner waived indictment and pled guilty on November 18, 2011. (Steller Aff. ¶ 5.) On January 26, 2012, Petitioner was sentenced to five years of probation. (Id. Ex. 3 at 1 (Dkt. No. 8-3).) On November 27, 2012, Petitioner was charged with violating the terms of his probation by testing positive for opiates on eight occasions between April 30, 2012 and July 30, 2012 and failing to report to probation on four occasions between April 18, 2012 and September 10, 2012. (Id.) On June 12, 2013, Petitioner pled guilty to violating the conditions of his parole. (Steller Aff. Ex. 4 at 4-5 (Dkt. No. 8-4).) On July 18, 2013, the Petitioner was resentenced to a term of seven and one-half years of imprisonment followed by two years of post-release supervision. (Steller Aff. Ex. 6 at 10 (Dkt. No. 8-6).)

Following a direct appeal, the Second Department affirmed Petitioner's conviction on December 4, 2013. People v. Kirzoncic, 112 A.D.3d 651 (2d Dep't 2013). Petitioner's leave to file an appeal was denied by the New York Court of Appeals on May 26, 2014. See People v.

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Kirzoncic, 23 N.Y.3d 964 (N.Y. 2014), reconsideration denied, 23 N.Y.3d 1064 (N.Y. 2014). On January 29, 2015, Petitioner filed the instant Petition for a Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, seeking relief on three different grounds. (Dkt. No. 1.)

The case was referred to the Honorable Judith C. McCarthy ("Judge McCarthy"). (Dkt. No. 10.) On September 4, 2019, Judge McCarthy issued a Report and Recommendation ("R&R") recommending that this Court deny the Petition in its entirety. (R&R 17 (Dkt. No. 13).) Petitioner has not filed any objections to the R&R.1

When no objections are filed, the Court reviews an R&R on a dispositive motion for clear error. See Andrews v. LeClaire, 709 F. Supp. 2d 269, 271 (S.D.N.Y. 2010); Eisenberg v. New Eng. Motor Freight, Inc.,...

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