Opposition — Turco v. Monroe County Bar Ass'n

a Supreme Cou, U. &

po Eine p

| UN 20 > 177

f

In The

Supreme Court of the United States

October Term, 1977

— a ee

No. 76-1816

a 6 ee -

ARTHUR F, TURCO, JR.,

Petitioner,

vs.

THE MONROE COUNTY BAR ASSOCIATION, THE

APPELLATE DIVISION OF THE SUPREME COURT,

FOURTH JUDICIAL DEPARTMENT, et, al.,

Respondents.

—

—=

—

BRIEF FOR RESPONDENT MONROE COUNTY

BAR ASSOCIATION IN OPPOSITION

—

— —-- | ee oe

NS SS ee - =

MICHAEL T. TOMAINO, ESQ.

Attorney for the Monroe

County Bar Association

2200 Lincoln First Tower

Rochester, New York 14604

Of Counsel,

William D. Eggers, Esq.

Rochester, New York

Daily Record Corporation (3054)

Spaulding Law Printing

Rochester, New York

Syracuse, New York

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...csssescesvcccsseens

STATEMENT OF THE CASE ..cesecssccsesesveees

A. Petitioner was afforded ample

opportunities to be heard in

the disciplinary proceedings........

B. Both the State and Federal

Courts have found that Peti-

tioner's pleas were not made

with a protestation of inno-

SOMO ccc crocccccccccccccccevccvccces

C. The "Stay in Cananda"™...cccccccececs

ARGUMENT co ccccicccccscccccccccccccccceccecs

POINT I - THERE IS NO CONFLICT

BETWEEN THE SECOND CIR-

CUIT AND THE SIXTH CIR-

CUIT ON THE ISSUE PRE-

SENTED BY THIS RECORD......

POINT II - THE DECISION OF THE

COURT BELOW IS PLAINLY

CORRECT... cccccceecceccvvens

POINT III - THE CLAIMS THAT PETI-

TIONER SEEKS TO PRESENT

IN DISTRICT COURT ARE

INSUBSTANTIAL.. ce eeeeeeeves

6 4 6. Si Sa a ae 2 ee ee eo ee

13

16

21

24

30

if uu

TABLE OF AUTHORITIES Page

Page Kauffman v. Moss, 420 F.2d 1270 (3d Cir.),

cert. denied, 400 U.S. 846 (1970)....... 20

CASES

; Mack v. The Florida State Bd. of Den-

Anderson v. aratett tee REE ines» 547 tistry, 430 F.2d 862 (5th Cir. 1970),

s)y . ’ cert. denied, 401 U.S. 960 (1971) 19

hO9 U.S. 879 (1072). 0coccccceccneeneemee iim. wo U-S. 960 (1971).......

Atlantic Coast Line R.R. v. Brotherhood - Matker of Levy, 37 N.¥.2d 279 (1975)......- 7

of Locomotive Engrs. 398 U.S. 281 2 Mulligan v. Schlacter [Schlachter], 389

(19 1) seevbcee8eaee eee eee ee eee weeeeewneeeeee 3 F.2d 231 (6th Cir. 1966 ) nnn bee hee 66 ee 6 20

planer yee OE Tees Ol eniog Ney v. California, 439 F.2d 1285 (9th Cir.

. 5 ® ’

103 Rs, oh8 (1075). .cccesecanueenneee DMEM CE Sie Ree eeebeeecrececccoccccecce 20

Brown v. Chastain, 416 F.2d 1012 (5th North carolina v. Alford, 800 U8. 2 27

Cir. 1969), cert. denied, 397 U.S. ll ——

951 (1970) ewer eee ewer eee eee eee 20 ) Preiser v. Rodriguez, 411 mF 475, 497

Coogan v. Cincinnat’ Ber Asseeeeeaeen nee | Cee TT ee cc ence eececeseeces 21, 22

ed 1209 (6th Cir. LeTO} cccasceeunenee ot 20 | Rooker Vv. Fidelity Trust Co.,; 263 ule 413,

: ij j}j jj eee eke che cen eee oe eececes 23

Reape Pies bnterpr) seo. inc. ve Korb ae i Roy v. Jones, 484 F.2d 96 (3rd Cir. 1973).. 19

F. . 5 . 5

416 U.S. 916 (1978). cccocceeesseseunnee 20 Specht >. Patterson, 386 i 605 (1967)... 25

Feet v. Reed, 547 F.2d 971 (6th Cir. 16 Tang v. Appellate Division of the New York

977 eeceeeeveee oes e0ene eee eee eee enenwnwanee 3” 17 Su reme Court, 487 F.2d 135 (2d Cir.

1 i973), cert. denied, 416 U.S. 906

Qineer vy. Cireutt Gomes se eee DPE Eee eee ke ewe ececceesecoeesccces 19

Wayne. 372 F.2d 621 (6th Cir. 1967), Tempo Trucking and Transfer Corp. v.

cert. denied, 387 U.S. 935 (1967)....... 18 ickson, 405 F. Supp. 506 (E.D.N.Y.

eee cece ce ee ehceeccccccccc. 3, 28

Hampron v. Clty of Chicago, 484 F.2d 602

th Cir. ] merry 21

Turco v. Allen, 334 F. Supp. 209 (D. Md.

lL97 lL) ccccceccccveeesssccccees eccccccces

STATUTES

N.Y. CPLR 5601, 5602

A

in The

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 76-1816

ARTHUR F. TURCO, JR.,

Petitioner,

vs.

THE MONROE COUNTY BAR

ASSOCIATION, THE APPELLATE

DIVISION OF THE SUPREME

COURT, FOURTH JUDICIAL

DEPARTMENT et. al.

Respondents.

BRIEF FOR RESPONDENT MONROE COUNTY

BAR ASSOCIATION IN OPPOSITION

STATEMENT OF THE CASE

Petitioner, an attorney disbarred by an

order of the Appellate Division of the Supreme

Court of New York on January 28, 1975 (Matter

of Turco 46 A.D. 2d 490 (4th Dep't), appeal

dismissed, 36 N.Y.2d 713, motion for leave to

appeal denied, 36 N.Y. 2d 642, cert. denied.,

423 U.S. 838, (1975)), seeks a writ of

certiorari to the United States Court of

Appeals for the Second Circuit, which affirmed

a judgment dismissing petitioner's amended com-

plaint. In his amended complaint, petitioner

sought to have the District Court review the

disciplinary proceedings against him in the New

York State courts on the grounds of alleged

denials of due process of law. The Court of

Appeals affirmed the dismissal of the actions

on the grounds that res judicata bars the

relitigation of issues presented to, and deter-

mined by, the New York State courts.

This Court denied Mr. Turco's prior

petition for a writ of certiorari to the Court

of Appeals of New York State (No. 74-1592;

Turco v. Monroe County Bar Association of the

State of New York, 423 U.S. 838 (1975)).

-3-

The facts pertinent to this petition

are ably stated in the opinion of the Second

Circuit (Gurfein, J.) reproduced at pages 4a-9a

of Petitioner's Appendix. Petitioner's state-

ment of the case has departed from fact in

several important particulars, calling for the

following corrections.

A. Petitioner was afforded ample

opportunities to be heard in the

disciplinary proceedings.

Petitioner represents that he received

no hearing in the Appellate Division before

that Court determined (a) that the convictions

in New York and Maryland were binding and could

not be relitigated in the disciplinary pro-

ceedings, and (b) that these acts constituted

professional misconduct for which discipline

was warranted. That representation is, at

best, mis leading+ and it requires a statement

l. Petitioner objects to New York's rule that

"an attorney convicted of a criminal

offense may introduce evidence in miti-

gation and explanation... . [but] he may

not relitigate the issue of his guilt of

the offense for which he was convicted."

Matter of Levy, 37 N.Y. 2d 279, 280 (1975).

Compare, Tempo Trucking and Transfer Corp.

v. Dickson, Tos F. Supp. 506, 517 N. 17, 18

(E.D.N.Y. 1975).

—

of the various hearings at which petitioner was

able to, and in fact did, present his con-

tentions.

In response to the written complaint

served by the Bar Association, ~ petitioner

filed a 61 page answer (with lengthy attach-

ments). In his answer, petitioner denied none

of the allegations in the written charges. He

reviewed his personal history, his involvement

with the defense of various Black Panther

cases, his weapons arrest in New York City, his

trip to Canada, his first trial in Maryland on

the charges related to the death of Eugene

Anderson, and his reasons for his pleas in New

York City and Maryland. Petitioner concluded

his answer with the request for a hearing in

2. On April 4, 1972 the Appellate Division

ordered the Monroe County Bar Association

to conduct an investigation on this matter.

-5-

which he might be permitted to prove his

innocence of the charges to which he pled

guilty.

By a motion before the Appellate Divi-

sion, petitioner attacked the sufficiency of

the complaint and pressed his contention that

he was entitled to relitigate the facts estab-

lished by the Maryland and New York con-

victions. At the hearing on this motion, peti-

tioner's contentions were ably presented in

writing and by oral argument of his retained

counsel (Petition p. 35a).

After the Appellate Division determined

that the written charges against petitioner

were sufficient and "the acts of which [Mr.

Turco] stands convicted constituted pro-

fessional misconduct" (Petition pp. 35a-38a),

ae o-

petitioner was granted a full hearing in miti-

gation, which ultimately covered seven days of

testimony. While Mr. Turco was not permitted |

to introduce evidence (apart from his own |

testimony) to establish his innocence of the

charges of which he was convicted, he was

given:

- e« « full leeway and oppor-

tunity to explain his reasons for

pleading guilty. [Mr. Turco's]

testimony and supporting evidence

yas detailed and quite com-

plete. (Petition p. 44a; 46 A.D. 2d

at 493)

3- Petitioner complains that the mitigation

hearing was after the Appellate Division's

determination that some disciplinary action

was warranted. It should be noted that

this determination was made with full

recognition of the circumstances set forth

at length in petitioner's answer and after

petitioner had the opportunity for oral

argument and written briefs.

4, The same explanation of the circumstances

of the pleas, set forth by petitioner to

establish the "bona fides of [his] demand

for a hearing..." (Petition pp. 12-15) was

exhaustively presented to the Appellate

Division.

-T-

After the mitigation hearing, Mr. Turco

had the opportunity to review and respond to

the written report prepared by the hearing jus-

tice. He submitted a further extensive brief.

His attorney was granted a further hearing to

present oral arguments before the Appellate

Division.

Following the Appellate Division's

order of disbarment, petitioner served a notice

of appeal to the New York Court of Appeals and

also moved for leave to appeal.> Consistent

with the practice of the New York Court of

Appeals, there was no oral argument on this

motion; petitioner submitted a 51 page affi-

davit in support of his right to appeal, fully

5. See N.Y. CPLR 5601, 5602. An appeal may be

taken as of right from a final order "where

there is directly involved the construction

of the constitution of the state or of the

United States...

re ae

presenting to that Court the same issues that

he thereafter presented in the District Court.

The Court of Appeals denied Mr. Turco's motion

for leave to appeal (36 N.Y. 2d 642) and dis-

missed his appeal taken as of right "upon the

ground that no substantial constitional ques-

tion is directly involved" (36 N.Y. 2d 490).

Accordingly, while petitioner asserts

that he was denied a due process hearing, the

record clearly establishes the contrary.

B. Both the State and Federal Courts

have found that Petitioner's pleas

were not made with a protestation

of innocence.

Petitioner represents to this Court

that his pleas in New York and Maryland were

made with the vigorous claim that he was

innocent of all charges. He fails even to

acknowledge that each court that has considered

the issue has concluded that this representa-

tion is contrary to the record. (46 A.D. 2d at

o@-«

492; Petition, p. lla) If petitioner has a

good faith basis for continuing to advance this

apparently false claim, he has failed to set it

forth.

In the Maryland plea proceedings, the

prosecutor stated the substance of the testi-

mony that would be offered by the prosecution

if the case proceeded to trial. In mitigation

of the sentence, counsel for petitioner stated

the nature of the evidence that the defense

would present, including an alibi defense. The

prosecutor objected to defense counsel's

declaration that petitioner contends that "he

was totally innocent of all charges." The

assertion of innocence was stricken from the

record after a conference at the bench as

follows:

THE COURT: It was my under-

standing from the conversation I

heard that the defendant would not

contend that there was no factual

basis for the plea and that it was

e 28 «

being entered to avoid litigation.

It was specifically agreed that the

guilty plea was not to be similar to

the type approved by the Supreme

Court in North Carolina vs. Alford.

It was my understanding there was to

be no contest as to the basic fact

that an assault was committed by the

defendant.

MR. KUNSTLER: I don't think we

have really said there is a conflict

with that aspect.

THE COURT; As I understand it,

when the factual statement was to be

made by the State there would be no

contest as to the facts. Up to the

time of the very end of your state-

ment, when you said Turco himself

would testify, your recitation of :

what the witnesses would say could be

covered by a finding that there was a

factual basis. But if Mr. Turco's

position is he does not feel in any

way that he has ever done anything

wrong and wishes to assert that posi-

tion on the record, apparently the

State is not prepared to follow

through with its recommendation on

that basis.

MRS. O'CONNOR: Correct. We

would ask the entire portion starting

"If Mr. Turco were called to the

stand..." be deleted at this point

and the plea continue with the

completion of the last witnesses, Mr.

Clerk.

— ———————— —

eo & «

MR. KUNSTLER: I would agree to

that.

As stated by the Second Circuit (Peti-

tion p. lla), "a disavowal of reliance on

Alford, though not in such unequivocal terms,

was made in New York plea proceedings as well.

Even if the record of the New York plea

proceedings sustained petitioner's claim that

he there asserted an "Alford plea" (and we are

inclined to accept that claim), petitioner's

direct testimony in the mitigation hearings

rebuts his claim that he believed himself to be

innocent of all charges against him in New York

city.° That testimony shows that petiticner

6. Petitioner has sometimes qualified his

claim by stating that he was "innocent of

the specific charges to which he pleaded

guilty." (Petition, pp. 11-12; emphasis

added.) With that qualification, his claim

allows for the possibility that he was

guilty of other charges involved in the

plea bargaining.

e 28 «

recognized that he might be guilty of at least

One charge:

Q. [Petitioner's counsel] ...

Tell us about the disposition of the

case in New York City...

A. «. . + The district attorney

stated very clearly that there was no

evidence that I lived there; in fact,

there was evidence to the contrary

that I did not live there. I was

just staying there for a while.

However, they did add a charge

against me for bail jumping when I

was in Canada in Montreal. The New

York case was continuing and I did

not appear. Other persons, I under-

stand, had been there had warrants

against them, the cases were finally

dismissed against everybody except

me, and so I went back to New York in

March. The district attorney

informed me that they had added

another charge to me of bail jumping.

So I was in New York and I spoke

with Gerald Lefcort about what we

should do. nts was no doubt in my

mine that we could prove innocence

the gun a an ere was no

doubt in only qu uestion

was IT or not, what we td sa

about bail jumping was that defensi-

ble position because Was in Canada

when I was supposed to appear in New

EE ————C(C(C¥® eee "

|

= 13 «

York, and we had thought it would be

advisable to avoid that issue since

that issue might tend to include a

moral turpitude ssue, and it was

resolved again with the district

attorney that I took a plea under the

Alford case, where I maintained my

innocence and which was put in the

record.

Q. Was the bail jumping charge

dismissed?

A. Yes, the bail jumping charge

and all the rest of the charges were

dismissed.

Q. What was the disposition of

the case in New York City?

A. I took a plea to a mis-

demeanor, possession of weapons, and

I received a conditional discharge of

three years.

(Emphasis Added)

C. The "Stay in Canada".

Petitioner makes no mention of a

.further subject that he voluntarily introduced

in his answer and his direct testimony in the

=

mitigation hearings. ! In February 1970, peti-

tioner was arrested in New York City and

charged with possession of weapons, dangerous

drugs, and hypodermic instruments. He was

released on bail. He went to Montreal to give

a svmeech, apparently without notifying the New

York authorities. Before the speech, peti-

tioner learned that he had been indicted in

Baltimore in connection with the murder of

Eugene Anderson. Petitioner learned through an

attorney that he would not be granted bail if

he returned to Baltimore. Petitioner's planned

speech was thereupon cancelled, and he remained

in Canada for seven months using the assumed

name of Leon Wright, in an effort to avoid

7. Petitioner has asserted that, during the

mitigation hearing, "nor was there any evi-

dence concerning anything negative about

petitioner's character." (Petition, p. 12)

We assume that petitioner has inadvertently

neglected the facts of his activities in

Canada.

o 19 «

arrest and extradition. He was, however,

arrested and identified when questioned by

Canadian authorities in connection with a

general investigation of a kidnapping. After

extradition proceedings were begun, petitioner

waived extradition and returned to Baltimore

with a police escort. (See, 46 A.D.2d at 496-

497, 501; Petition, p. 6a)

Although "bail jumping" and the "stay

in Canada" were not the basis of the Bar Asso-

ciation's charges against petitioner, these

facts were voluntarily introduced by peti-

tioner. These matters were addressed in his

answer, his testimony, and the briefs -- with

no claim that these matters were not a proper

subject for consideration by the court.

a os

- 16 - - 17 -

ARGUMENT 971 (6th Cir., 1977), is in conflict with the

determination by the Second Circuit in the

POINT I instant case. Getty v. Reed involved an attack

THERE IS NO CONFLICT on the three-tiered procedure for disbarment of

BETWEEN THE SECOND CIRCUIT

AND THE SIXTH CIRCUIT ON

THE ISSUE PRESENTED BY THIS

RECORD.

Kentucky lawyers in which the Kentucky Court of

Appeals decides guilt and penalty after hearing

The Second Circuit properly observed oral argument on a record developed before a

° Si i t

that this record does not present the issue on trial panel. The Sixth Circuit held that the

ict C t had jurisdiction of the com-

which the Supreme Court has yet to render a District Court had j n m

definitive ruling: i.e "where the state plaints because the plaintiffs raised an attack

eo e a |

litigation was involuntary as to the peti- on the constitutionality of the State pro-

tioner. and where the constitutional points cedural statutes and regulations and sought the

>

could have been raised but were not." convening of a three-judge court. However,

(Petition p. 13a.) As stated by the Second except with respect to a First Amendment claim

's r

Circuit (Petition, p. 12a), "[{Petitioner] does that one lawyer's right of freedom of speech

ailed disci a

not question that he has raised the same claims was cur? by plinary action based on

7 his statements during a state court trial, the

in the State courts.

Sixth Circuit affi the dis on t

It is only by ignoring the posture in . cu rmed the missal on the

rounds that the due process claims were not

which the issue was raised, as well as the g P

substantial.

reasoning and holding of the case, that peti-

tioner can claim that Getty v. Reed, 547 F.2d

OE OE EE

@ 18 «

The Sixth Circuit in Getty v. Reed

expressly noted that its decision was

"(wjithout reference at this point to... such

defenses as res judicata and collateral

estoppel" (547 F.2d at 974) because such

defenses "could only properly be pled and con-

sidered before the three-judge court itself"

(547 F.2d at 975). The Court in Getty v. Reed

expressed its continued adherence to Ginger v.

Circuit Court for the County of Wayne, 372 F.ed

621 (6th Cir., 1967), cert. denied, 387 U.S.

935 (1967) and Coogan v. Cincinnati Bar

Association, 431 F.2d 1209 (6th Cir., 1970),

both of which bar the relitigation of issues

raised and decided in state court disciplinary

proceedings. (See 547 F. 2d at p. 974.) To

the extent that the court in Getty v. Reed

expressed any view that the District Court

might have "jurisdiction" to consider claims

arising from disciplinary proceedings (547 F.

ee

» @ «

2d at p. 974) or expressed agreement with Judge

Oakes' dissenting opinion in Tang v. Appellate

Division of the New York Supreme Court, 487 F.

2d 138 (2d Cir. 1973), cert. denied, 416 U.S.

906 (1974), these statements are dicta. Those

views are consistent, as well, with the Court's

observation that the defense of res judicata

was premature in the posture of Getty v. Reed.

Nor is there any substantial conflict

on this point among the several circuits. Mack

v. The Florida State Bd of Dentistry 430 F.2d

862 (5th Cir., 1970), cert. denied, 401 U.S.

960 (1971, White, J. dissenting from denial of

writ), appears to be the only instance in which

a federal court, overruling the defense of res

judicata, permitted the relitigation in a Sec-

tion 1983 action of issues actually determined

in state court. The Circuit Courts have other-

wise uniformly applied res judicata to Sec-

tion 1983 actions. E.g., Roy v. Jones, 484

- 20 =

F.2d 96 (3rd Cir. 1973); Brown v. Chastain, 416

F.2d 1012 (5th Cir. 1969), cert. denied, 397

U.S. 951 (1970); Coogan v. Cincinnati Bar Asso~-

ciation, 431 F.2d 1209 (6th Cir. 1970);

Blankner v. City of Chicago, 474 F. 2a 1037

(7th Cir. 1974), cert. denied, 421 U.S. 948

(1975); Anderson v. Lecon Properties, Inc. 457

F.2d 929 (8th Cir.) cert. denied, 409 U.S. 879

(1972); Francisco Enterprises, Inc. v. Kirby

482 F.2d 481 (9th Cir. 1973), cert. denied, 415

U.S. 916 (1974). Where res judicata has not

been applied, it is because the record did not

show that the question sought to be raised in

federal court was put in issue and determined

in the state court proceedings. E.¢. Kauffman

v. Moss, 420 F.2d 1270 (3d Cir.), cert. denied,

hoo U.S. 846 (1970); Mulligan v. Schlacter

[Schlachter], 389 F.2d 231 (6th Cir., 1968);

,Ney_v. California, 439 F.2d 1285 (9th Cir.,

1971). In one further case advanced as

Biss — aur baer ,

~— wen

illustrating the "inconsistencies" (Petition,

p. 39), the court held that res judicata did

not apply where the plaintiffs in the federal

court action were not parties to the judgment

in state court. Hampton v. City of Chicago,

484 F.2d 602, 606 n.4 (7th Cir., 1973).

This court's view of the subject has

been indicated with sufficient clarity in

Preiser v. Rodriguez, 411 U.S. 475, 497 (1973),

citing (among others) Coogan v. Cincinnati Bar

Association, supra. There is therefore no

overriding reason for any further pronouncement

on this issue at the present time.

POINT II

THE DECISION OF THE COURT

LAINLY CT

In contending that the principles of

res judicata are inappropriate in Section 1983

cases, petitioner relies on examples drawn from

criminal law. Petitioner apparently ignores

@] 22@4

the fact that a specific statutue authorizes

the lower federal courts to entertain appli-

cations for a writ of habeas corpus. He then

advances his view of public policy and suggests

that the writ of certiorari is an insufficient

guaranty that state courts will adhere to the

dictates of due process of law.

These flimsy contentions are lacking in

substance. Petitioner's analogies are inappro-

priate because the writ of habeas corpus arises

from a specific grant of authority to the

federal courts to review the constitutional

validity of custodial confinement. Preiser v.

Rodriguez, 411 U.S. 475, 495 (1973). Peti-

tioner has not even attempted to demonstrate

that Section 1983, by its language or its

central purpose, confers upon the lower federal

courts the power to exercise appellate review

over civil proceedings in the state court. He

fails to mention the consistent holdings of

—

or

oes ee ey te ke “

ee nk

ed rere Geen ~

@ 23 «

this Court that the District Courts do not have

jurisdiction to review state court proceedings

for possible constitutional error. Rooker v.

Fidelity Trust Co., 263 U.S. 413, 415-416

(1923); Atlantic Coast Line Railroad v. Brother-

hood of Locomotive Engineers, 398 U.S. 281, 286

(1971).

If Petitioner's argument were to be

accepted (in spite of its lack of substance),

then the Federal District Courts would have

jurisdiction under Section 1983 to exercise

review over every state civil proceeding in

which due process contentions (or other con-

stitutional arguments) were raised. This result

would be not only contrary to the results in

Rooker and Atlantic Coast Line Railroad; it

would be contrary to fundamental notions

of our federal system. Plainly, it would

take something more than the petitioner's view

of public policy to warrant such a drastic change

—

in the long standing relationships between the

state and federal judicial systems.

POINT III

THE CLAIMS THAT PETITIONER

S S N

DISTRICT COURT ARE INSUB-

AL.

Even if there were sufficient reason to

consider the res judicata issue as it applies

to Section 1983 cases, this record provides a

particularly unlikely vehicle for that

consideration. The record is replete with

issues of state substantive law, independently

justifying the discipline imposed. Moreover,

the issues that petitioner seeks to raise in

District Court lack substance.

Petitioner finds solace in the Second

Circuit's statements that his claims may not be

"entirely frivolous" (Petition pp. 26, 36;

emphasis supplied). That comment, however,

must be considered in context with the Second

Circuit's further statement (Petition, p. lla):

—

To the extent that the con-

tentions lack constitutional signi-

ficance, they are not cognizable in

the federal courts. To the extent

that they possess such significance,

they have already been determined

adversely to [Turco] on the merits."

The New York Court of Appeals Summarily

rejected petitioner's due process claims on the

merits by dismissing his appeal "upon the

ground that no substantial question is directly

involved." (36 N.Y. 2d 713)

On the question of the substantiality

of petitioner's contentions, the determination

by the New York Court of Appeals falls closer

to the mark. Petitioner has identified three

contentions, the first of which is allegedly

based on Specht v. Patterson, 386 U.S. 605

-967). The principles of Specht provide no

assistance to petitioner. He was made

expressly aware at the time of both of his

guilty pleas that the convictions might have

collateral consequences affecting his standing

@- 26 «~

as an attorney. The prosecuting attorney in

the Maryland proceedings stated that one of the

considerations for accepting petitioner's plea

to a reduced charge was "...that by pleading

guilty to assault [Mr. Turco] is exposing

himself to sanctions by the Bar Association of

the State of New York and would be subject to

disbarment procedures in New York." See, 46

York proceedings, the prosecutor made the

following statement in recommending sentence:

Mr. Corriero: Your honor, I

believe, is aware that defendant

is an attorney and an officer of

the Court and admitted to

practice in the State of New

York. I believe, under the

circumstances, that the charges

against the defendant are

extremely serious, and that the

Court should consider this in

imposing sentence on this

defendant.

In the disciplinary proceedings before

the Appellate Division, petitioner was given

ample opportunity to be heard on whether these

» 2 -

convictions evidenced professional misconduct.

Even assuming that Specht requires a due

process hearing before disciplinary sanctions

could flow from petitioner's criminal con-

victions, petitioner was afforded every oppor-

tunity to be heard that due process might

contemplate.

Petitioner's argument based on North

Carolina v. Alford also lacks any degree of

substance. His position is without basis in

fact because, as earlier demonstrated, he was

not permitted to make an Alford plea in Balti-

more. Whether he asserted his innocence in the

New York proceedings is not material because he

thereafter admitted that he lacked a defense to

the "bail jumping" charge and found it

"advisable to avoid that issue..." There is,

moreover nothing in Alford that protects a

defendant who pleads guilty in the face of

strong evidence of guilt from the imposition of

=—

collateral consequences which were actually

known to the defendant at the time of his

criminal conviction. Petitioner's claim based

on Alford is utterly fallacious both factually

on this record and as a matter of law. E.g.,

Tempo Trucking and Trensfer Corp. v. Dickson,

405 F. Supp. 506 (E. N.Y. 1975).

There is no merit in petitioner's final

contention: that the Appellate Division

accepted as dispositive the offers of proof in

Baltimore and New York when petitioner entered

his pleas to the reduced charges. Petitioner

claimed that his pleas were motivated by ill

health, lack of funds and hostile judicial

attitudes. It thereby became necessary for the

Appellate Division to consider the totality of

the circumstances of the pleas as such circum-

stances were actu i_, stated on the record when

the pleas were made. These circumstances

naturally included the nature of the underlying

ees tee te

e @«

charges, the factual foundations offered by the

prosecutors, the prosecutors' reasons for

recommending the acceptance of a plea to a

reduced charge and the position there stated by

and on behalf of Petitioner. In reciting the

circumstances of the underlying charges, the

Appellant Division relied on the summary of the

testimony of the prosecution's witnesses, to

which petitioner had stipulated. (Petition, p.

8a) This review was made necessary by peti-

tioner's claims regarding the motivation of his

pleas, because it thereby became clear that one

further reason for the pleas was the strong

factual support for the cases against him. °

8. Indeed, when a mistrial was declared in

petitioner's first trial in Maryland, the

jury was split 9-3 in favor of conviction.

Turco v. Allen, 334 F. Supp. 209, 210 (D.

Md. 1971).

- 9% «

That the Appellate Division reviewed the

factual foundation stated by the prosecutors at

the times of the pleas does not, of course,

warrant petitioner's conclusion that the

Appellate Division found him guilty of charges

to which he had not pled guilty.

CONCLUSION

For the reasons stated, the petition

Should be denied.

Dated: July 15, 1977

Respectfully submitted,

MICHAEL T. TOMAINO, ESQ.

Attorney for the Monroe

County Bar Association

2200 Lincoln First Tower

Rochester, New York 14604

Of Counsel,

William D. Eggers, Esq.

Rochester, New York

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