McCool v. New York State
| Decision Date | 20 November 1998 |
| Docket Number | No. 96-CV-442F.,96-CV-442F. |
| Citation | 29 F.Supp.2d 151 |
| Parties | John R. McCOOL, Petitioner, v. NEW YORK STATE and Dennis C. Vacco, Attorney General, Respondents. |
| Court | U.S. District Court — Western District of New York |
John R. McCool, Huntingdon, Pennsylvania, petitioner pro se.
Dennis C. Vacco, Attorney General of the State of New York (Charles J. Genese, Assistant Attorney General, of Counsel), Rochester, New York, for respondents.
JURISDICTION
Petitioner, John R. McCool ("McCool"), initiated this action on July 3, 1996, requesting habeas corpus relief under 28 U.S.C. § 2254. The parties executed a consent to proceed before the undersigned pursuant to 28 U.S.C. § 636(c).
McCool was indicted by an Ontario County grand jury on May 5, 1980 and charged with robbery in the first degree, reckless endangerment in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree in violation of the New York Penal Law. Following a jury trial, McCool was convicted of robbery in the first degree. On November 12, 1980, McCool was sentenced as a persistent felony offender to an indeterminate term of fifteen years to life for that conviction.
McCool's petition challenges the constitutionality of the sentencing court's finding that he qualified for sentencing as a persistent felony offender. The constitutionality of McCool's underlying conviction, however, is not challenged.
Respondent's answer, accompanied by a memorandum of law, was filed February 11, 1997. McCool filed an "Opposition to Respondents' Answer" on March 4, 1997, to which Respondents filed a letter in reply on March 18, 1997. Oral argument was deemed unnecessary.
Based on a review of the papers submitted, along with the state court record, the petition is DISMISSED.
On July 30, 1980, McCool was convicted of robbery in the first degree following a jury trial over which Ontario County Court Judge George A. Reed presided. (T at 329).2 Specifically, McCool was found guilty of robbing a woman at gunpoint by entering her car in which she was sitting, firing a gunshot as a warning, and informing the woman that "[t]he next one is for you." (T at 65-69, 70-71). In response to police interrogation, McCool fabricated a story alleging that the gun discharged inside the victim's car following a struggle which ensued after McCool refused to pay her for prostitution services. (T at 172-78). McCool was represented at trial by John E. Tyo, Esq. Respondents' Exhibit 16.
Following the verdict, the District Attorney, seeking to have McCool sentenced as a persistent felony offender, filed a document purportedly listing the dates and locations of McCool's prior convictions. Respondents' Exhibit 11 at 2. McCool denied all of the convictions, Exhibit 10, at 3, and Judge Reed scheduled an evidentiary hearing pursuant to N.Y.Crim.Proc.Law § 400.20 to determine whether McCool qualified for sentencing as a persistent felony offender. Exhibit 11, at 1.
Judge Reed also presided over the persistent felony offender and sentencing hearings which were held on November 12, 1980.3 At the persistent felony offender hearing, the court admitted, over defense counsel's objections, seven certificates of conviction into evidence. (P at 3-7). According to such certificates, McCool was convicted in Pennsylvania on March 26, 1973 of burglary and larceny for which he was sentenced to two to five years incarceration, and on November 18, 1974 of escaping from a Pennsylvania correctional institution for which he was sentenced to two to four years incarceration. (P at 2-10). The Minnesota certificate of conviction indicates that McCool was convicted in Minnesota on July 26, 1974 of unauthorized use of a motor vehicle for which he was sentenced to eighteen months incarceration. (P at 35).
Additionally, Samuel E. Gordon, a Pennsylvania parole agent, testified that McCool had been convicted of escaping from a Pennsylvania correctional institution for which he served a two year prison sentence in that state beginning in September, 1977. (P at 8-10). Gordon supervised McCool's parole following this sentence. (P at 8). Gordon also testified regarding a number of McCool's prior convictions based on McCool's Pennsylvania parole records. (P at 11-14). The court, however, sustained McCool's objection and struck the testimony concerning McCool's prior convictions. (P at 14-17). Thomas Hunt, an Ontario County Probation Officer who had prepared McCool's presentence report, testified that he had obtained information concerning prior convictions from Pennsylvania, and from a computerized New York State criminal records. (P at 29-30).4
The defense did not call any witnesses. However, defense counsel vigorously contested the admissibility of most of the testimony and exhibits relating to McCool's criminal history arguing that the prosecution had not presented a sufficient evidentiary basis upon which to find that McCool was a persistent felony offender. (P at 32-35). Specifically, defense counsel argued that no credible evidence had been presented to show that McCool had actually served time in prison for the convictions, a prerequisite to a finding of persistent felony offender. (P at 34-35).5
The court ruled that the prosecution had not submitted sufficient proof that McCool had been previously incarcerated for two felonies and granted an adjournment to allow the district attorney additional time to obtain certificates verifying McCool's record of incarceration. (P at 36). However, McCool objected to the adjournment and Judge Reed commenced the sentencing hearing. (S at 2-3). At that time, McCool sought to address the court. (S at 2). The Judge Reed responded to this request by informing him Id. McCool's attorney then stated,
[y]our honor, if I may make a statement for the record. I intend to give Mr. McCool an opportunity to say what he wants but for the record he has made known to me that he wants to make a statement to the court concerning this adjournment and I—I—I—this—his statement is over my objection but I don't see how I could stop him from making a statement. I believe he wants to go forward with this, that is what I believe he is going to tell the court.
Id. McCool then, in a lengthy monologue, addressed the court as follows:
Today's outcome won't change two weeks from now, so if he needs some documents to prove that I was in jail, all you need to do is to ask me and I will tell you that I was in jail. I am not denying the fact that I was in jail. I am not trying to hide it.
(S at 2-3).
McCool further expressed displeasure at being regarded as a "persistent felony offender," stating that the District Attorney was (S at 3). However, he acknowledged that the persistent offender statute applied to him, even though he felt that the term was offensive and misleading.
I got in trouble in New York and [it] just so happens in New York they have this law. I can't help it I don't know anything about it but I'm caught up with it and nothing I can say or do today can change what you're going to sentence me two weeks from now, so I don't want to wait two weeks from now. There is no sense in waiting two weeks from now to get him to give you some papers to prove that I did state time in Pennsylvania or state time in Minnesota.
McCool continued to address the court, acknowledging that he had, in fact served "state time" in prison in both Pennsylvania and Minnesota for the felony convictions in those states as the prosecution had represented to the court. (S at 3). McCool also admitted to having been convicted for numerous other crimes including unauthorized use of a motor vehicle (S at 4), burglaries at age 11 (S at 5) and at age 17 (S at 7-8), separate convictions in three different counties in Pennsylvania for burglaries committed while on probation for which he was sentenced to two to five years incarceration (S at 9), and escaping from a correctional camp (S at 10). The record indicates no attempt by McCool to refute any of the misconduct for which he had admitted having been convicted.
McCool addressed numerous other topics, including an explanation of the circumstances surrounding some of his offenses, (S at 4-5, 8-10), his opinion of the District Attorney's performance, (S at 6-7, 11-12, 16-18), and repeated assertions that he was not the type of person one thinks of when using the term "persistent felony offender" as he was "not a Mafian character" nor an "organized dealer in dope." (S at 12-13, 19-21, 23-24).
At the completion of McCool's statement, his attorney asserted that, "notwithstanding my client's statement, I still don't think there has been proof of imprisonment." (S at 24). The court then found that McCool had been convicted of a felony on two occasions prior to the commission of the instant crime and had served prison time for such convictions. (S at 27). The judge specified that he was referring to the prior convictions in Pennsylvania and Minnesota to which McCool had admitted. Id.
McCool's attorney then reiterated to the court McCool's assertion that he was not a "career criminal" type. (S at 30-31). Counsel requested that McCool receive the minimum sentence permitted under the statute, fifteen years to life, which the court then imposed. (P at 33); Respondents' Exhibit 14 at 2.
McCool, again represented by Mr. Tyo, appealed his conviction, including the finding of his persistent felony offender status and sentence to the Appellate Division, New York Supreme Court, Fourth Department. Respondents' Exhibit 16. The judgment was affirmed in all respects. People v. McCool, 142 A.D.2d 1007, 531 N.Y.S.2d 424 (N.Y.A.D. 4th Dept.1988) (table). McCoo...
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