Vavolizza v. Krieger

CourtNew York Court of Appeals
Citation308 N.E.2d 439,33 N.Y.2d 351,352 N.Y.S.2d 919
Parties, 308 N.E.2d 439 Salvatore VAVOLIZZA, Appellant, v. Theodore KRIEGER, Respondent.
Decision Date14 February 1974

Salvatore Vavolizza, in pro. per.

Norman Bard, Brooklyn, and Joel H. Lichtenstein, for respondent.


The question presented is whether the denial of a party's motion to vacate a guilty plea in a criminal action can act as collateral estoppel in a later action brought by the party against his attorney for malpractice based on the attorney's advice to plead guilty in the criminal action. On the peculiar facts as we find them in this case we hold that the prior criminal adjudication does indeed block plaintiff's current attempt to sue his attorney.

In 1968 plaintiff came to trial in United States District Court on an indictment charging him with conspiracy and with fraudulently obtaining immigration visas. During the course of the trial and after the prosecution presented testimony including an identification of plaintiff by an eyewitness, and after the opportunity for a weekend consultation with his attorney, defendant in the instant case, who had listened to a tape implicating plaintiff in the conspiracy, plaintiff and a codefendant entered a plea of guilty to the conspiracy count and a substantive false statement count. Prior to accepting the plea of guilty the court conducted a thorough Voir dire pursuant to rule 11 of the Federal Rules of Criminal Procedure to determine the voluntariness of the plea and whether plaintiff fully understood the consequences of the plea. The court also indicated that based on the testimony heard thus far in the case he was satisfied as to plaintiff's guilt. When plaintiff appeared for sentencing he was represented by a different attorney of record, who nevertheless had appeared on plaintiff's behalf during the course of trial and stated, prior to a verdict, that petitioner was considering a withdrawal of his guilty plea. In light of this the court suggested that plaintiff and his new attorney of record might consider a motion to withdraw the guilty plea prior to sentencing. This option was not taken and plaintiff, in effect, threw himself on the court's mercy claiming he was unaware that what he did was illegal. He and his new attorney clearly and unequivocally admitted at this point that he had indeed committed the acts with which he was charged. Although findsing that plaintiff was the 'principal' among the codefendants, and that he was the one who 'principally' profited by it, the court only fined plaintiff $7,500 on the first count and handed out a one-year suspended sentence on the second count, the probation to be unsupervised.

Six months after his sentencing plaintiff moved to vacate his guilty plea and the judgment of conviction and sentence based thereon pursuant to section 2255 of title 28 of the U.S. Code on the ground that his plea was involuntary and pressured by counsel (defendant in the instant action) who was allegedly enmeshed in a conflict of interest. 1 Plaintiff produced no proof to substantiate this claim save an affidavit in which he proclaimed his own innocence and said that he told as much to a probation officer after the entry of the guilty plea (although there was no affidavit to this effect by the probation officer); an affidavit by a codefendant who also entered a guilty plea on advice of the same counsel in which it is stated that plaintiff's desire to continue with the trial was beaten down by counsel who wrongly convinced him that it would go easier if he pleaded since he would be convicted anyway; and an affidavit from an attorney, who initially had plaintiff's case but who had to withdraw at an early stage because of illness, that plaintiff had never indicated to him that he was guilty of the charges and, in fact, proclaimed his innocence.

The court, in an unreported opinion, refused to grant the motion for vacatur finding that based on the court's own Voir dire examination plaintiff understood the charges he wished to plead to, conferred with counsel respecting those charges, and, last but not least, actually committed the acts charged. It was then stated:

'Of course, the fact that a larger fine than expected may have been imposed upon petitioner affords no grounds for setting aside the judgment of conviction and plea. (Citations.) Nor do petitioner's assertions that he was pressured by counsel to plead guilty require a hearing in view of the fact that such assertions were negatived by his own prior declarations before this Court (citation) and totally contradicted by the record and petitioner's conduct at sentencing.

'The Government has filed a Nolle prosequi as to the two codefendants whose trial ended in a 'hung jury' and declaration of mistrial. Petitioner, the principal and moving force behind this conspiracy, obviously seeks to invoke the discretion of this Court in the expectation that the Government will not initiate further prosecution against him. I cannot allow such a result.'

Thus having failed to extricate himself in the Federal proceedings, plaintiff now attempts to sue defendant, the attorney who advised the guilty plea, in malpractice. The Appellate Division majority has reversed Special Term's denial of defendant's motion for summary judgment, 39 A.D.2d 446, 336 N.Y.S.2d 748, holding that the decision rendered in Federal court on plaintiff's motion to vacate his...

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