*1 аrgues Appellant hitting there no have avoided hiña because of support finding evidence to his own acts.” keeping lookout; proper driver was Additionally, testimony there was negligent yield- that Harris was in not the driver could not off have turned right way pedestrian to a and the road because of trees there was no evidencе that Ander- rocks, and that he could not swerve looking. son was not There is evi- other approaching to the left because of an support dence the record Moreover, car. it is doubted findings, court’s but answer anything driver had time to do which interrogatory which was received in evi- could have avoided the collision. appellant’s dence takes care of conten- attempted to detail We have not points. tions these That answer is: testimony supports all which approached I “As I Pool area Gem findings. say trial court’s Suffice it watching my lane of traffic findings supported evi are both sides road. noticed dence relied on record. Casеs boys three or four left side appellant help are of no to him when parking the road in the area. How- is affirmative evidence ever, Anderson was not visible. When findings. support record to the Court’s I was almost to the trees Anderson Bishop (Wyo.1960) P.2d Feltner v. rapidly pine ran from behind some .548, applied Wyoming to a situation law directly my trees front of car. He a child darted in front of a where car. looking paying any was not atten- It was there held that a driver not re going. tion I immedi- quired impossible, do and the trial ately applied the brakes and slowed judgment court’s favor of defendant down. Anderson never seemed to no- was affirmed. me tice and made no effort avoid findings The lower court’s and conclu- my hitting car and I couldn’t avoid negligent sions that Harris was him.” negligent sup- that Anderson was are appellant’s accept Even if we ar ported in record. guments the evidence showed that Affirmed. ordinarily Anderson per a careful son and that in the absence of evidence contrary presumed tois pеdestrian negligent, appellant helped
is not here because there is af
firmative evidence that Anderson was
negligent. findings Appellant says that toas of America ex rel. UNITED STATES
proximate cause and last clear chance MARTINEZ, Relator- John they supported record, are not Appellant, The record shows: are. my “Anderson ran in front of car MANCUSI, Warden of Attica Vincent R. very rapidly and from clоse to the Prison, Attica, State New hitting highway. I couldn’t avoid him Respondent-Appellee. going per if I had been miles hour No. Docket 71-1851. looking If he had slower. Appeals, States seen me I came Second Circuit. roadway area near the he could have Argued being Jan. stopped and avoided struck. However, he ran out from behind the Decided Jan. looking trees without and without slowing speed paying and without
any attention whatsoever own
safety. way There was no could *2 Pelster, City, C. New York
William relator-appellant. for Atty. Gen., Slater, New llene Asst. J. (Louis Atty. Lefkowitz, City York J. York, Gen., New State Atty. Hirshowitz, First Asst. Samuel A. counsel), Gen., City, of for York New respondent-appellee. Judge, FRIENDLY, Chief Before Judges. OAKES,
MOORE Circuit Judge: MOORE, Circuit Relator-appellant, John Martinez deny- (Martinez), aрpeals an order from hearing petition a a without sought corpus of habeas writ wherein judgment a en- conviction review County of Monroe tered in the Court County, upon New (second felony de- the Class C dangerous drug.1 gree) selling a challenges validity of his Martinez Judge, Oakes, Circuit dissented and conviction, claiming that his opinion. filed voluntary “bаsed because it was and confusion immediate and made under threat assistance of without the effective (Applt's p. The facts counsel” Br. surrounding County following. reveal the Court indicted in Martinez October selling County Court the Monroe degree dangerous drug in the second Law, McKinney’s (N.Y. Consol. Penal Laws, 220.35) and also in the c. § 220.20).2 degree (Id. § indicted Mаrtinez November selling danger- (Monroe County) drug in (Indict- ous the second ment arraignment.
November
represented
by retained coun-
guilty”
pleaded “not
sel. Martinez
drug
crime of
593). Coun-
(Indictment
Ap-
Supreme
judgment
1.
was denied
the United States
was affirmed
Supreme
Court,
pellate
New
91 S.Ct.
Division of the
York
People
Court,
Department,
(1971).
L.Ed.2d 222
Fourth
Martinez,
34 A.D.2d
311 N.Y.S.2d
apрeal
pleas
guilty”
Apparently
New
2.
leave
York
of “not
Appeals
certiorari
denied and
entered as to this indictment.
requested
until De-
Martinez’
sel
March
sought
8,1968.
guilty plea,
cember
Granted.
withdraw
because
of asserted “confusion about
the whole
Martinez’
December
matter,”
preparedness
lack of
placed
rеquested case
trial cal-
necessity
picking
jury
of his
in anoth-
Any
“before
endar.
motions
made
*3
er
The
case.
sentenced
Court
Martinez
December 30th trial calendar date.”
probation
who
then
was
on
had
been
27,
30, 1968, January
December
previously
(second
of
convicted
assault
appeared
“ready
case
trial” сalendar.
on
selling
degree)
years
5to
to
15
“nar-
February
Colloquy
17, 1969.
in
drugs, particularly,
(Tr.
cotic
heroin.”
saying
disposition
Court,
the Court
20, 21).
might
of the two indictments
be made
respect
The facts with
to Martinez’
through
plea
plea
one
it
not
“but
was
a
background in
in
crime are set forth
Dangerous Drug
Selling
to
a
in the Appellate
(nine
opinion
Division
convic-
Degree”
(Tr.
Third
Martinez’
ranging
years,
tions in nine
from bur-
pre-
counsel
said
he was
glary
convictions).
to six narcotics
34
pared
go
although
to trial
his office
A.D.2d at
311
117. That
N.Y.S.2d
“ready”
February
had answered
for the
Court affirmed the denial of the motion
adjournment
requested
He
calendar.
an
plea.
to withdraw the
The District
morning”
“until at
tomorrow
be- Court
plea
below found that
was
cause he
defend
couldn’t
Martinez “with-
knowingly
knowledge
made
full
of
preparation.”
out
some
The Court
consequences
and that
had
Martinez
granted
until 3:00 P.M.
not been denied effective assistance of
Upon a later call Martinez was advised
counsel.
charges
of the
and of the District Attor-
argument
supрort
any
There is no
ney’s understanding
word
any
promise
a
of
sort
made
was
from Martinez’ counsel
that he wished
County
by
even intimated
Court
“guilty”
plea
to substitute
a
of
under
judge.
pros
proof
isNor
there
Indictment 593
crime
a
by
plea
induced
ecutor
an undertak
drug in the second
in
accept
recommend to the
satisfaction of
Indictments 512
pаrticular
plea.
ance of a
Even had
questions
To
the Court to Martinez
proof,
there
such
Martinez’
verify
enough
and his counsel to
Martinez’ un-
experienced
was
to know that
derstanding
consequences,
inter se could not
parties
bind
replied,
explained
analogous
“I
Mr.
Marti-
Court. For a situation most
nez
Judge
difference between the two de-
present
see
Kauf
grees
yes.”
crime,
re-
opinion
Martinez
man’s
and the cases cited there
sponded
degrees
in,
knew that both
ex rel.
v. Fol
United States
Rosa
were felonies and
lette,
(2d
that he understood
Cir.),
F.2d
395
721
cert. de
degree “permits
greater,
nied,
a
89
S.Ct.
21 L.
longer
degree (Tr.
sentence”
sup
than third
Ed.2d 172
a decision which
13, 14).
Finally,
рorts
the record discloses
the denial
a motion to withdraw
Martinez’
plea
answers that his
was
plea
vol-
a
rather
under
similar cir
untary,
knowledge
entered
anything
with the
cumstances. Nor
attorney,
given
consent of his
Supreme
without
recent
Court’s
decision
promises
threats,
knowledge
without
v. New
Santobello
U.S.
might
the sentence
be
with-
S.Ct.
L.Ed.2d
which
any
рlea
out inducement of
nature. The
Santobel
different
In
dictates a
result.
accepted.
to second
lo
was
plea
“on
made
condition
March
set
sentence.
no sentence recommendation would be
request-
(404
March
prosecutor.”
1969 Martinez’ counsel
at
made
adjournment.
ed an
(a
prosecutor
March
Granted
at
14th.
prosecutor
different
than the one
concerned, may
indict-
plea)
am
two
negotiated
“recommended
had
(92
through
disposed
one-year
sentence.”,
ments
maximum
Selling
plea,
497)
it was not
the defendant’s
and cited
at
Degree.
Dangerous Drug
in the Third
previous
record. There was
criminal
By
promise
part
talk.”
That
no
оf our
of a broken
clear case
—of
“talk,”
judge presumably
refer-
very
on
was ob
which
condition
ring
chambers,
existed.
to the talk
had
Here no
situation
tained.
such
Cir.,
bargain
apparently
2d
also,
States,
See
v.X.
informally
pres-
footnote.
and in the
been struck
court,
ence of the trial
if not the defend-
heavily
his coun-
relies
ant.
profession
unpreparedness.
sel’s
*4
had
had
claim. Counsel
facts belie this
judge
disputes
Defense counsel
the
as
prepare. He had
confer and
months to
agreed
to
and when he
been
to
He knew
for trial.
announced readiness
attorney
asks
the
the district
on
record
“ready”
on
calendar.
the case was
the
version,
replies,
for his
the latter
“No
missing or unavail-
He made no claim of
very
comment.” Yet it is that
same dis-
gave
for
witnesses. He
no reasons
able
attorney
just
trict
the de-
who
asked
any postponement.
In fact
the need of
to
fendant whether
the latter wished
overnight
merely
very request
the
selling.
to
lack
indicate
of
the
circumstances,
Undеr
defense
complexity
the defense.
of
day adjournment,
counsel
one
asks for a
finding that
The
Court’s
“the
District
pointing out
while the case
was an-
rights
petitioner’s
the federal con-
under
ready
February
swered
call of
at the
infringed in re-
stitution have not been
he was “not informed
calendar
until this
spect
complained of”
to the mattеrs
morning
proceeding.”
that we were
The
on a solid foundation
fact.
of
application
denies this
defense
court
and
expresses
appreciation
its
says
going
counsel
he is
to withdraw
Esq.,
Pelster,
capa-
to
C.
his
William
adequately
“because I can’t
defend this
representation
appellant.
ble
of the
preparation,
man without
some
and
Affirmed.
Attorney
think the District
should at
give
me
kind of notice.”
Judge (dissenting):
gives
OAKES,
enough
court
time
Circuit
on the
spot to talk to the defendant
under
neces-
A
recital of the facts is
brief
changes
plea
the circumstances
his
sary
of them
because
statement
degree.
guilty of
in the second
majority opinion
overloоks some
place,
The usual
ritual
takes
underlying appellant’s
key
elements
only
slip
dialogue
immaterial
claims.
(when
says
here
has
defendant
clubby atmosphere
Coun-
In the
been told what sentence he would receive
County, New
ty
Monroe
Court of
attorney
this, whereupon
and his
denies
attorney,
district
assistant
where the
agrees
thе defendant
that he has not
counsel,
“Lew,”
appointed
defense
told).
been
“Bob,”
judge
met
sentencing
Prior to
the defendant’s at-
defend-
in the absence
chambers
torney
plea
seeks
leave to withdraw
at-
the district
ant
to discuss the
guilty
put
on
and to
the matter
open
back
torney
defendant
addresses
informal,
the trial calеndar
in an
oral
directly.
asks the defendant
He
court
get
motion since he has been “unable to
through
attorney he wishes
whether
his
papers prepared”
his
because of
own
change
pleas
en-
his not
“commitments”
and “schedule.”
This
count
ter
sentencing,
denied.
drugs
motion is
On the
—selling
the third
beyond seeking
preserve
record on
degrеe.
interrupts
the dis-
The court
plea,
motion to withdraw
attorney
says
far
“so
as
trict
big
understanding
has a
own
asked to do
the defendant
indicates
so
record.
family, his
is in
courtroom
wife
nothing
say
more to
other
that “I have
Moreover,
right
to counsel under
in chambers.”
I have said
than what
the sixth and fourteenth
amendments
Presumably
another off-
refеrs
this
means the
to counsel that has had
defendant’s
talk in the
ab-
the-record
opportunity
prepare.
While
sentencing was dis-
sence where
here, apparently
doubtless had
time
this,
of all
the defendant
Out
cussed.
hopeful
negotiating
counsel had been
a sentence with a
receives
bargain.
Following
some
what was
years
mini-
fifteen
and a
maximum of
clearly
at
least a
years at Attica.
mum of five
bargain,
the terms of that
counsel asked
only
delay.
guilty,
one-day
involuntary
Machi
As the
Su-
An
preme
Ungar
States,
Sarafite,
Court said in
broda v. United
510, L.Ed.2d 473
82 S.Ct.
(1964):
L.Ed.2d
process “in
due
both State
violates
prosecutions.”
v. Wain
Federal
Oaks
The matter of continuance is tradi-
(5th
wright,
Cir.
tionally within the
discrеtion
faced with
Defendant was
judge,
every
and it is
denial
*5
immediately
proceeding
dilemma of
request
of a
for more time that vio-
attorney
defense
who had
trial with a
party
process
lates due
if
the
even
ready
he
not
was
announced
compelled
fails to
evidence or is
offer
proceed and
had asked to withdraw.
Avery
to defend without counsel.
v.
in the
such a situation could result
How
321,
Alabama,
308 U.S.
S.Ct.
[60
intelligent
voluntary and
exercise of “a
my-
Contrariwise,
84 L.Ed.
377.]
among
alternative
courses
choice
the
opic
upon expeditiousness
insistence
defendant,”
open
action
North
request
justifiable
de-
face of
Alford,
25, 31, 91
Carolina v.
lay
can render
with
defеnd
(1970),
L.Ed.2d 162
S.Ct.
27
empty formality.
counsel an
Chandler
majority
opinion
fails
to disclose.
Fretag,
348
v.
99
U.S.
[75
Judge
pointed
As
out
Kaufman
L.Ed. 4.]
pride in United
Rosa
States ex rel.
v.
(Emphasis
supplied;
the matter
itali-
(2d
Follette,
Cir.)
395 F.2d
724
significantly
cized was rather
omitted
denied,
cert.
89
by the
of three
device
asterisks
reference to Martinez’ criminal record is imply probably
intended to guilty pleaded, as he specula- since such improper.
tion majority I think opinion
But
*6
wrong,
points
of con-
America,
UNITED STATES of
stitutional law mentioned.
think
Appelleе,
wrong
judicial
as a matter of
adminis-
v.
policy.
refer,
trative
course,
Jimmy
GOODWIN, Appellant.
L.
proposition that in
pro-
the interests of
moting plea bargaining “a constant fac-
America,
UNITED STATES of
tor
sig-
is that
any
when a
rests in
Appellee,
promise
agree-
nificant
on a
or
ment of
prosecutor,
so that it can GOODWIN, Jr.,
John
Appellant.
part
said to be
of the inducement
con-
71-1348,
Nos.
sideration,
71-1349.
promise
such
must be ful-
filled.”
Santobello v. New
404 U.
Appeals,
United States Court of
495, 499,
S.
mand, leaving it to the state court to de-
termine “specif- whether there should be performance agreement
ic on
plea”
opportunity
—here
Olson,
in a
271, 278,
the assistance of counsel
serious
Hawk v.
charge
arraignment
(1945)
criminal
after
is too