Petition for Writ of Certiorari — Kupferstein v. New York

84-100 FILED

JUL 18 1984

Office - Supreme Court, U.S.

—_——

!

No. ALEXANDER L. STEVms.

ald al

IN THE

Supreme Court of the United States

Ocroser TERM, 1983

BERNAT KUPFERSTEIN,

Petitioner,

VS.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE NEW YORK SUPREME COURT.

APPELLATE DIVISION. SECOND DEPARTMENT

IRVING ANOLIK

Attorney for Petitioner

225 Broadway

Suite 1915

New York, New York 10007-3028

(212) 732-3050

QUESTIONS PRESENTED

1. Whether petitioner’s plea of guilty was voluntary?

2. Whether a plea of guilty by a defendant, predicated upon

misinformation given to him by his own counsel, constitutes a

denial of the Sixth Amendment right to the effective assistance

of counsel and, therefore, requires the vacating of the plea?

3. Whether petitioner's articulation prior to sentence in open

court, to the Trial Judge, that he was innocent and did not in-

tend to plead guilty, required the Trial Judge to vacate the plea

of guilty?

4. Whether petitioner’s confusion and equivocal answers dur-

ing the allocution prior to plea requires vacating of that plea?

5. Whether the plea of guilty should be vacated, in view ot

the prosecutor’s failure to supply his promised list of creditors

claiming restitution, upon which promise the plea was, in part,

predicated?

6. Whether the petitioner was denied a speedy trial (Amend-

ments V, VI and XIV, U.S. Const.)?

PARTIES

The parties in the Court below were the same as herein.

In the Trial Court, however, onc Ferdinand Landau was a

co-defendant.

eee

TABLE OF CONTENTS

EES A ee ee ee

Re Brains ba oa. o d's wiv Nita ys 8d No

Constitutional and Statutory Provisions Involved .

ee

Reasons for Granting the Writ .................

POINT I

A PLEA OF GUILTY IS TANTAMOUNT TO

A CONFESSION OF GUILT UTTERED IN

OPEN COURT AND, THEREFORE, IM-

PACTS UPON THE FIFTH AND FOUR-

TEENTH AMENDMENTS OF THE UNITED

STATES CONSTITUTION. WHERE

COUNSEL FOR A DEFENDANT IMPROPER-

LY INFLUENCES HIM TO PLEAD GUILTY,

CONTRARY TO HIS WISHES, OR CAJOLES

OR INTIMIDATES HIM INTO DOING

THAT, WE MAINTAIN THAT CON-

STITUTES INEFFECTIVE ASSISTANCE OF

COUNSEL, IN DEROGATION OF THE

SIXTH AND FOURTEENTH AMENDMENTS

OF THE UNITED STATES CONSTITUTION.

IN THE CASE AT BAR, WE SUBMIT THAT

BY KUPFERSTEIN’S TRIAL ATTORNEY’S

OWN ADMISSION, HE URGED HIS CLIENT

TO PLEAD GUILTY DESPITE THE FACT

THAT PETITIONER MAINTAINED HIS IN-

NOCENCE, AND FURTHER CONCEDED

THAT PETITIONER SEEMED CONFUSED,

FRIGHTENED, AND EQUIVOCAL .........

13

13

iv

POINT II

THE TRIAL COURT COMMITTED REVER.-

SIBLE ERROR BY DENYING DEFENDANT-

PETITIONER’S MOTION TO WITHDRAW

HIS PLEA OF GUILTY AND GO TO TRIAL.

DURING A HEARING HELD ON THE MO-

TION TO WITHDRAW THE PLEA, NOT

ONLY DID DEFENDANT STATE THAT HE

WAS INNOCENT AND HAD NOT WANTED

TO PLEAD GUILTY, BUT HIS OWN TRIAL

LAWYER TESTIFIED THAT THE DEFEN-

DANT WAS IN A STATE OF HYSTERIA

AND PROBABLY CONFUSED BY WHAT

ke a ee ee 16

POINT III

THE PETITIONER WAS DENIED A SPEEDY

TRIAL, IN VIOLATION OF THE FIFTH,

SIXTH AND FOURTEENTH AMENDMENTS

OF THE UNITED STATES CONSTITUTION. 20

ee eee ee 21

TABLE OF AUTHORITIES

Cases Page

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182... 20

Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621 14

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 . 15

Brady v. United States, 397 U.S. 742, 90 S.Ct.

se eae ek het e eee ede aan 13

Correale v. United States, 1 Cir. 1973, 479 F.2d

ERR Mare a aah ah area eamrtet or ag Be eee rag se SA) SP 15

Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564 ... 20

Dillingham v. United States, 423 U.S. 64, 96

NE RS lr aca ere, aN ed 20

Heidman v. United States, 8 Cir. 1960, 281 F.2d

RRO es rere ener on nen re ae 14

Hunter v. Fogg, 470 F. Supp. 1041 (D.C.N.Y.,

DONE ss civnecudhackeu aby cas tean eee ated 18

Johnson v. United States, 9 Cir. 1976, 539 F.2d

1241, 1243, cert. den. 43] U.S. 918, 97 S.Ct.

dy ORE aS ee ee 15

Klopper v. North Carolina, 386 U.S. 213, 87

ee ee os ry ec puke a ee Ee bc 20

Lepera v. United States, 9 Cir. 1978, 587 F.2d

Me GAA ics SE ae 14

McMann v. Richardson, 397 U.S. 759, 771, 90

tS es ee es re oe aes hee eke 15

North Carolina v. Alford, 400 U.S. 25, 91 S.Ct.

OD ee ca gc acre kaa as a 13

North Carolina v. Alford, 400 U.S. 25, 31-39, 27

BL CR eee eR seh nrg 19

People v. Beasley, 25 N.Y.2d 483, 307 N.Y.S.2d

a ee Ree ies ala Oe Eres ONS a cae 19

People v. Granello, 18 N.Y.2d 823 ............. 8

People v. Moore, (4th Dept.), 78 A.D.2d 997, 433

82 3 | eer ae a a tere re rete 18

iia aaa

vi

People v. Nixon, 21 N.Y.2d 338, 351, 287 N.Y.S.

radii « Thee EEE RT ee On ee

People v. Rogers, (1981, 1st Dept.), 81 A.D.2d

Sen; ee EE oc eae

People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d

623, cert. den. 410 U.S. 1199................

OE kant vane 240 06 orc) PUR eee

MAE. cp vn ba ewe ade k Seu eee

Santobello v. New York, 404 U.S. 257, 260, 92

Due. Qe GE «sv tveweilederene eee

Strader v. Garrison, 4 Cir. 1979, 611 F.2d 61....

Strunk v. United States, 412 U.S. 434, 93 S.Ct.

BO vivccaseks cxkeeseacwn cn eeLe te.

FS UTTER OT ee Pek aN Ge

United States ex rel. Wakely v. Russel, D.C. Pa.

EUs A WO TI 6 ia sido Cena

Unites States v. Crook, 5 Cir. 1979, 607 F.2d 670

United States v. Marion, 404 U.S. 307, 92 S.Ct.

MP éxse ob bee hee eet eee.

EE Pe Pee er rere) ot

United States v. Scott, 5 Cir. 1980, 625 F.2d 623.

Wiley v. Sowders, 6th Cir. 1981, 647 F.2d 642 ..

Other Authorities

ae PII ALG ASE OM IP es

No.

IN THE

Supreme Court of the United States

Ocroser TERM, 1983

BERNAT KUPFERSTEIN,

Petitioner,

VS.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE NEW YORK SUPREME COURT.

APPELLATE DIVISION, SECOND DEPARTMENT

OPINION BELOW

No opinion was written by the Court below, but a copy of

its decision is annexed hereto as an appendix.

The Court of Appeals denied leave to appeal, and the cer-

tificate denying leave to appea: is also attached as an appendix.

JURISDICTION

A. The judgment of the Supreme Court of the State of New

York, County of Kings, rendered the 24th day of September,

1982, convicted the defendant — petitioner, upon his plea of guil-

ty to the crime of falsifying business records in the first degree,

before Honorable Dominic Lodato. A motion to withdraw the

plea of guilty, and a hearing on that motion was held, but the

Trial Court refused to permit withdrawal of the plea of guilty.

The indictment had contained 124 counts, and the trial ac-

tually commenced and proceeded for about three weeks before

both petitioner and his co-defendant, Ferdinand Landau, plead-

ed guilty.

The indictment revolved around certain alleged real estate

transactions and the like.

The petitioner herein maintained that he did not plead guil-

ty voluntarily; that he was cajoled and pressured by his former

attorney; and that he was completely innocent of the charges

and wanted to take back his plea of guilty and go to trial.

B. The petitioner applied for leave to appeal to the Court

of Appeals, but an order denying leave to appeal was made on

the Ist day of June, 1984, which is annexed hereto.

The order of the Appellate Division Second Department, af-

firming the judgment of conviction and denying relief to the

petitioner was dated the 9th day of April, 1984, and is also an-

nexed hereto.

C. Jurisdiction to review the judgment and order in ques-

tion by certiorari is conferred under 28 U.S.C. §§1254 and 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth, Sixth and Fourteenth Amendments of the United

States Constitution are involved herein.

STATEMENT OF THE CASE

The Grand jury of Kings County, State of New York, indicted

Bernat Kupferstein, the petitioner herein, and Rabbi Ferdinand

Landau, a co-defendant, on 124 count indictment jointly charg-

ing them with the crimes of forgery in the first and second degree

(22 counts); grand larceny in the second degree (79 counts); falsi-

fying business records in the first degree (5 counts); and viola-

tions of the General Business Law Section 352(e)(8), a misde-

meanor (18 counts).

— ee ee eee

The alleged activity encompassed by the indictment concern-

ed more than 25 complex real-estate syndications which occurred

over a period of about twenty years.

It should be noted that the position of Bernat Kupferstein

was that of an employee, and not as a principal, with Ferdi-

nand Landau. Kupferstein maintained that he was merely a

person taking orders from a superior and that he was not real-

ly involved in the case. Throughout the proceedings, according

to the testimony of his own trial lawyer, Murray Cutler, Esq.,

the petitioner constantly and consistently maintained his com-

plete innocence.

There came a time, however, after three week of trial in a

case that looked like it would perhaps encompass several more

months, both defendants, which of course included the peti-

tioner herein, pleaded guilty.

Very shortly after the plea of guilty however, Bernat Kupfers-

tein moved, through new counsel, to withdraw his plea of guilty,

and asked to go to trial. Among the various grounds urged by

Kupferstein when seeking to withdraw his plea of guilty, was

that he was (1) innocent of the charges; (2) he was coerced, ca-

joled and intimidated into pleading guilty by his own counsel;

(3) he was upset, confused and nervous and did not know what

he was doing and that he simply followed his then attorney’s

advice.

The minutes of the proceedings also reveal that the prosecu-

tion had promised to supply a list of creditors who were mak-

ing claims for restitution against the petitioner, so that he could

evaluate the veracity of their claims. That list, although part

of the plea bargain, has never been forthcoming. Instead, the

prosecution has indicated that there were multiple files in the

District Attorney’s office which the defendant-petitioner could

peruse and try to figure out who the claimants actually were.

We maintain that sifting through voluminous files, in the hope

that a defendant will unearth what he believes to be pertinent

material, is not the same thing as supplying a list, as the plea

bargain contemplated.

As a matter of fact, Murray Cutler, Esq., his attorney at trial,

conceded that at all times the petitioner was reluctant to plead

guilty (59)*.

Furthermore, the defendant, who is a man who is up in years

and is not a native of this country, seemed to be totally exhausted.

As a matter of fact, his attorney testified at the hearing seeking

the withdrawal of the plea of guilty, that the defendant (peti-

tioner) seemed “worn out” and also seemed to be very much “in

a state of fear” (62; A372).

Mr. Cutler further declared that the defendant clearly seemed

“confused” when he pleaded guilty.

In his affidavit in support of the motion to withdraw that plea

of guilty, the petitioner maintained that he was innocent of all

the crimes charged, and that he did not want to plead guilty,

but was cajoled and frightened into doing so by his then attorney.

Furthermore, Kupferstein swears in his affidavit that he was

prepared to take the witness stand and that he was fully ready

to go through the entire trial.

In his affidavit, the defendant-petitioner asserts, inter alia, that

he did not want to plead guilty because he did not believe he was

guilty then, nor does he believe that he is guilty now. He main-

tains, and persists, in his protestations of complete innocence.

Kupferstein alleges that it was because of confusion and cajol-

ing from his attorney, Murray Cutler, Esq., that he finally pleaded

guilty, although it was never his desire to do so.

In his affidavit in support of his motion to withdraw his plea,

which was done substantially before the sentence date was set,

among other things, petitioner Kupferstein alleged (A-89ff):

“I know that I never had any criminal intent, nor

was it ever my desire to commit any crime. Further-

more, I contend that I did not knowingly or willfully

* Numerals in parentheses refer to pages of the official court reporter's

minutes of trial, except where the prefix “A” is used, and in that instance they

refer to the Appendix used in the Court below.

do anything wrong, especially because of the fact that

Mr. Landau was really the creator and operator of this

entire business and I only performed ministerial

functions.

“In addition, I could not even afford to meet the

terms set forth in the plea of guilty because they are

totally unrealistic.

“I regret to say that my former attorney, Mr. Cutler,

so confused me and created such panic in my mind,

that I frankly went along with his suggestion that I

plead guilty, although in my heart that was never my

desire.

“The Court will not that even while I was being ques-

tioned about whether I wanted to plead guilty, there

was substantial doubt expressed by me. For example,

I denied that I did anything fraudulent (Minutes o plea,

p. 16). When asked by the Court whether the entries

were untrue, Mr. Cutler responded ‘Unquestionably.’

I responded ‘I don’t know. I don’t know. I don’t say

unquestionably.’ (Minutes, p. 17).

“Moreover, when asked whether or not there had

been reliance on certain papers, I merely said “They

probably relied upon this paper.’ (Minutes, p. 18).”

At the time of plea, the Trial Court indicated that certain con-

ditions would be set for restitution and the like and that the Peti-

tioner could have his plea back again in the event that the condi-

tions could not be met (A94, 105-110, 115-123).

We informed the Trial Court that the conditions could not be

met, and yet that Court refused to allow withdrawal of the plea.

Thus, at page A91 of his affidavit in support of his motion to

withdraw the plea, Kupferstein further alleged:

“Furthermore, the Court itself indicated that if, for

some reason, the arrai.gements made in the plea bargain

could aot be carried out, that I would be entitled to

have my plea back (Minutes, p. 22). That is what I

would want because I not only maintain that I am in-

nocent but, in addition, the restitution required is totally

unrealistic.

“I have retained Mr. Anolik in connection with this

case and I have relieved Mr. Cutler from this case.

“I am aware of the fact that I shall be required to

go to trail, but this is what I want to do. In fact, I

always wanted to go to trial, and still do.

“Since this application is being made well before

the 3rd of August, which is the date set for my

sentence at the present time, I submit that the District

Attorney cannot be prejudiced in any way.

“I am entitled to my day in Court. I have never

previously been convicted of any crime. I am a deeply

religious man and I realize that what I am saying here

is under oath and I tell you, under oath, that I am

not guilty of the charges which were brought against

me.

A perusal of the minutes of sentence will show that the Trial

Court imposed a considerably less than five-year period for the

defendant-petitioner to make restitution, despite his protesta-

tions that he could not do so, and that it was contrary to the

plea minutes.

Yet, a perusal of the plea, page 28, reveals the following col-

loquy with the Trial Court, wherein the Court states that the

defendant shall have five years within which to make restitu-

tion (A28-30):

“THE COURT: So, the esset.ce of our disposing of

this case is to dispose of it once and for all forever.

Do you know what I mean?

In other words, we are taking a plea here this after-

noon to dispose of this case and to dispose of it forever.

You make the payment, the People are satisfied, that

is the end of the case. You do not come back here

again. You are finished. It’s over. The years this thing

has been over your head will be completed, finished.

Now, in the event I put you on probation, it will

be an extended period of time of probation, five years

probation, where, one, you would have to pay the

money either before the expiration of this probation

or up until the five years.

Do you understand that?

THE DEFENDANT KUPFERSTEIN. Yes.”

At the hearing which was held prior to the imposition of

sentence, wherein the issue of permitting withdrawal of the plea

was probed by Judge Lodato, Murray Cutler, the Trial attorney

for the Petitioner, testified for the prosecution that the defen-

dant was “on the verge of hysteria” (p. 83) (A393).

At page 66 of the minutes Mr. Cutler testified that the defen-

dant, prior to the plea and during allocution thereon, told him

that “he’s not guilty of anything but he’s pleading guilty.”

In addition, the Petitioner told Cutler, according to the lat-

ter’s testimony, that he was “practically penniless” and that he

“had no money” because “Landau [the co-defendant] had taken

all the money.”

Additionally, Cutler testified that the defendant was dejected

and not very responsive (66) (A376).

Cutler recalls that at all times the defendant had a reluctance

to plead guilty (59). Moreover, he stated that Cutler had been

informed by Kupferstein that the latter was only an employee

of Rabbi Landau, the co-defendant, and that he was not real-

ly involved in any wrongdoing whatsoever.

The attorney, Cutler, stated that because there were 124

counts against Kupferstein, he urged him to try to resolve the

case by plea (59) (A369).

In addition, Cutler testified that the defendant was worn out

and seemed to be very much “in a state of fear” (62) (A372).

At the proceedings prior to the plea, Cutler recalled the Trial

Judge saying that the case “looks like a civil case” and Cutler

informed Kupferstein of this sentiment, indicating that if he

took a plea the Judge would probably be very lenient (75)

(A385).

The attorney also testified that the fact that a client says guilty

in a plea bargain, does not necessarily mean that he thinks he

really is guilty. He pointed out that is the way things are done

during a plea bargain (80) (A390).

Furthermore, Cutler testified that he does not make it a prac-

tice of going into the questions or specifics of guilt. That is for

the Court to determine (81) (A391).

On cross-examination Cutler admitted that up until the time

of trial and the commencement thereof, Kupferstein consistently

claimed he was innocent (86) (A396).

In addition, he stated that during the plea negotiation at the

time of the plea itself, Kupferstein was very depressed and

agitated and was in “an upset state of mind” (86, 87) (A396-7).

The lawyer testifying for the prosecution admitted that the

case was a triable case, although the Court sustained an objec-

tion (87) (A397).

He repeated that he never had the defendant examined by

a physician or a psychiatrist, despite the obvious depression and

dejection which he exhibited and that Kupferstein on many oc-

casions had told him that he was really innocent and wanted

to vindicate himself (88) (A398).

In the minutes of November 23, 1981, Robert Baron, Esq.,

an attorney, testified that he had represented Kupferstein in

certain civil matters in the past. He testified that in around May

of 1981 he was informed by the appellant that the latter was

on trial in a criminal proceeding but that he had lost confidence

in his trial attorney [Murray Cutler, Esq.], and that he believ-

ed his attorney was perhaps better prepared to handle violent

criminal cases rather than white-collar type cases.

Mr. Baron stated that he was then told that Mr. Kupferstein

had pleaded guilty and was very disturbed about it, as a result

of which he referred Kupferstein, after looking at the Grand

Jury minutes himself, to another attorney (6-7) (A152-3).*

* It should be noted that the hearing was extended over quite a period of

time, so the pagination of various minutes are paginated as of the date that

they were taken, and that is why there appears to be duplicate numbers of

their different dates. But the appendix is in proper sequence.

At this point we interject the fact that over objection the Trial

Hearing Judge permitted the prosecution to roam far and wide

on its cross-examination ad its direct examination, concerning

matters that had nothing to do with the issue of withdrawing

the plea of guilty. That was a very narrow issue and could have

been resolved perhaps in a matter of a day or two. Instead, the

hearing lasted a number of days because the prosecution was

permitted to roam into wholly irrelevant areas, such as is il-

lustrated by the far-reaching and irrelevant cross-examination

of attorney Baron. The Court permitted the prosecution to go

into corporate structures, and whatnot.

At the hearing a motion in limine was made that the Court

restrict any examination of the defendant-petitioner to the issue

of withdrawal of his plea. Particularly in view of the fact that

permission to withdraw his plea would entitle the petitioner

to go to trial, it was highly prejudicial to permit the prosecu-

tion to go beyond the issue raised by the hearing. Despite this

fact, the Court permitted extensive cross-examination of

Kupferstein on every aspect of the case, most of which had

nothing whatsoever to do with the withdrawal of the plea of

guilty. (See Minutes of December 14, 1981, beginning at pages

1 through 10 [A244-255] and following).

The salient fact is that Kupferstein stated that he did not want

to plead guilty; that he was innocent; and that he was cajoled

and, in essence, frightened into pleading guilty, although he

was never guilty.

The petitioner stated that he wrote letters to his then attorney,

Murray Cutler, Esq., on two occasions, but received no

responses, marked “Defendant's Exhibits A and B” (6-9) (A92,

93).

Petitioner testified further at this hearing that his attorney

was not really prepared to go to trial because he did not have

any in-depth, or even superficial, preparation.

Another letter was sent marked “Exhibit C.” So far as prepara-

tion was concerned, the defendant-petitioner testified that

Cutler told him that it wasn’t really necessary to be prepared

for trial. Cutler allegedly said “You don’t have to do anything.

10

You will just sit there. You’re innocent. You will sit there. The

trial is for Landau . . . You’re innocent. You just sit there. 1

will not ask you to be a witness.”

Kupferstein further declared that he always maintained his

innocence (12) (A254).

Furthermore, petitioner testified that he never authorized Mr.

Cutler to arrange a plea of guilty for him (14).

He stated that after the trial had started and progressed for

several days, Cutler asked “How about pleading guilty?”

Kupferstein asserted that he responded “Forget about it. Don’t

even mention this kind of thing to me” (14, 15) (A256-7).

Kupferstein then related that Cutler told him the Judge was

pressuring him because the case could be disposed of. But, he

rejoined that he was no interested in it. He insisted that he was

innocent and that he did not want to plead guilty (15).

Furthermore defendant stated that he was frightened and ca-

joled because he was informed that he would be sent to Riker’s

Island and that he was told “You cannot be with them [the in-

mates] even one hour or half-hour” (15, 16) (A257-8).

The petitioner further testified that he received constant

pressure from this attorney time and time again, and he then

began to feel that he was not really his lawyer and that he was

not really interested in defending him. Under the circumstances,

he felt completely deserted and then believed that he had no

choice but to plead guilty because he had a lawyer who was

not really interested in defending him (16) (A258).

He asserted that he spoke to other lawyers, a Mr. Baron, a

Mr. Hessler, and a Mr. Selzer, and also a Mr. Bisar (17) (A259).

He told all these people that he had lost confidence in Mr.

Cutler and that Mr. Cutler did not really want to defend him

(17) (A259).

He stated that he was very frightened about Riker’s Island

and that he felt under a great deal of pressure (17, 18).

Moreover, defendant stated that the financial arrangements

set forth in the plea discussions were totally impossible for him

to afford (18) (A260).

11

Additionally, Kupferstein testified that he wants to have his .

plea of guilty withdrawn and wants to go to trial (18, 19)

(A260-1).

There was other testimony adduced at the hearing, all in-

dicating that the defendant-petitioner always claimed he was

innocent and that even his former lawyer, Murray Cutler, had

to concede that the defendant claimed he was innocent and that

he was very upset, agitated and frightened, and during the plea

discussions themselves, appeared to contest his guilt.

A perusal of the minutes of the plea furthermore reveal that

petitioner did not give unequivocal answers of guilt, but, on

the contrary, was very equivocal.

Another witness, Irving Heisler, testified for Mr. Kupfers-

tein, stating that he, too, was.an attorney at law and that he

had contacted the then attorney representing Mr. Kupferstein,

prior to the trial herein. Although he had left messages, Mr.

Cutler did not return his calls for quite some time, namely

March of 1981.

Mr. Heisler testified that there were certain matters that he

felt Mr. Cutler had to know about in order to properly repre-

sent Mr. Kupferstein (Minutes 11/23/81, pp. 52-56) (A198-204).

Heisler testified that in speaking to Mr. Kupferstein he was

informed that the latter had lost his confidence in Mr. Cutler

and was convinced that Mr. Cutler could not properly repre-

sent him in this trial. Heisler asserted, however, that he was

unable to recommend a substitute attorney on such short notice

because the trial was imminent (see pages 54-57) (A200-203).

Again, over objection, the Court permitted the prosecution

to go into vast irrelevant areas on cross-examination. The Court

attempted to justify this on the basis that the question of restitu-

tion was involved and therefore the prosecutor had a right to

go into the question of finances.

We submit, however, that the issue was incorrectly analyz-

ed by the Court below, because restitution was irrelevant at

that point since the defendant-petitioner was seeking to

withdraw his plea altogether and go to trial.

12

It should be noted that Mr. Cutler himself had testified that

the defendant appeared confused at the time that he pleaded guilty.

At the time of sentence the Trial Court was again reminded that

the defendant protested his innocence and asserted that he did not

intend to plead guilty, but was confused and was misadvised by

his former attorney, Murray Cutler, Esq. The Court nevertheless

denied the motion to withdraw the plea of guilty and undertook

to impose sentence. The defendant stated that he was prepared

to take a polygraph test, if necessary, but the prosecutor apparently

would not consent (Minutes of 9/24/82, pp. 3-5) (A405-9).

It was pointed out that the defendant had never previously been

in conflict with the law and that the defendant insisted that he

was not guilty (6) (A254-6, A404-9).

At page 7 of the same minutes, the defendant, at the time of

sentence, stated that he was not guilty, and that he didn’t do

anything wrong, and that he did not take money from anybody

(7-8).

It was further pointed out at the time of sentence that the defen-

dant did not have the wherewithal to make restitution and was

not prepared to do so (9-11)* (A410-13).

On October 25, 1982, the Trial Court indicated that the restitu-

tion was not necessarily to be paid over a 5-year period because

no schedule had been set. Yet, the minutes of plea clearly indicate,

as we have demonstrated, supra, that the Trial Court stated that

the defendant would be given five years within which to make

restitution (Minutes of 10/25/82, pp. 10-12).

Petitioner's attorney, Mr. Cutler, made a written motion to

dismiss the indictment for denial of a speedy trial, pointing out

that the people delayed the trial but Kupferstein was ready at all

times. The motion was denied.

* As a matter of record, however, defendant has been making restitution by

depositing monies in an escrow ccount, and the Court and prosecutor have been

kept advised of this fact. At the present time, approximately $60,000 in restitu-

tion has been accumulated against the $200,000 due. This fact, however, is

brought out because of the desire to demonstrate petitioner's good faith and in

no way should be interpreted as diminishing his ardent desire to have the guilty

plea and sentence vacated and being permitted to go to trial.

13

REASONS FOR GRANTING THE WRIT

POINT I

A PLEA OF GUILTY IS TANTAMOUNT TO A CON-

FESSION OF GUILT UTTERED IN OPEN COURT

AND, THEREFORE, IMPACTS UPON THE FIFTH

AND FOURTEENTH AMENDMENTS OF THE

UNITED STATES CONSTITUTION. WHERE

COUNSEL FOR A DEFENDANT IMPROPERLY IN-

FLUENCES HIM TO PLEAD GUILTY, CONTRARY

TO HIS WISHES, OR CAJOLES OR INTIMIDATES

HIM INTO DOING THAT, WE MAINTAIN THAT

CONSTTiUTES INEFFECTIVE ASSISTANCE OF

COUNSEL, IN DEROGATION OF THE SIXTH AND

FOURTEENTH AMENDMENTS OF THE UNITED

STATES CONSTITUTION.

IN THE CASE AT BAR, WE SUBMIT THAT BY

KUPFERSTEIN’S TRIAL ATTORNEY'S OWN ADMIS-

SION, HE URGED HIS CLIENT TO PLEAD GUIL-

TY DESPITE THE FACT THAT PETITIONER MAIN-

TAINED HIS INNOCENCE, AND FURTHER CON.

CEDED THAT PETITIONER SEEMED CONFUSED,

FRIGHTENED, AND EQUIVOCAL.

While plea bargaining is one of the realities of the criminal

justice system, and even the Supreme Court has said that pro-

perly administered it is to be encouraged, that certainly does

not mean that it is to be foisted upon a defendant, contrary to

his interests and wishes (See Santobello v. New York, 404 U.S.

257, 260, 92 S.Ct. 495, 498).

It is axiomatic that a plea of guilty or nolo contendere, may

be accepted if it is entered voluntarily. (Brady v. U nited Siates,

397 U.S. 742, 90 S.Ct. 1463; North Carolina v. Alford, 400 U.S.

25, 91 S.Ct. 160).

Furthermore, it has been held that the decision to plead guilty

or not guilty is a decision reserved solely for the accused, based

upon his intelligent and voluntary choice. (Wiley v. Sowders,

6th Cir. 1981, 647 F.2d 642).

14

Moreover, it has been held that in determining whether a

guilty plea was made knowingly, intelligently, and voluntari-

ly, factors to be taken into consideration include the accused’s

age and background [in the case at bar the accused is a man

of advanced age and has a foreign background and not ac-

customed specifically to the Anglo-Saxon system of justice as

practiced in this country]; trial counsel’s familiarity with the

law; consistency or lack of consistency in pleas made throughout

the pretrial and trial stages of the case [Kupferstein throughout,

even by admission of his own trial lawyer, consistently claim-

ed that he was innocent and wanted to be vindicated]; and the

accused’s opportunity to consult with trial counsel. (United

States ex rel. Wakely v. Russel, D.C. Pa. 1970, 309 F.Supp. 68).

It should be noted here that the trial counsel, Mr. Cutler,

conceded that the accused did not want to plead guilty; he seem-

ed nervous and confused; and had always insisted upon his

innocence,

It should be pointed out further that the accused produced

a number of exhibits, as well as the testimony of other attorneys,

that he immediately notified them that he had been forced to

plead guilty and was extremely upset by the fact that his lawyer

had intimidated him to the point of compelling him to plead

guilty.

In Heidman v. United States, 8 Cir. 1960, 281 F.2d 805, it

was held that a plea of guilty is not voluntary simply because

it is the product of sentient choice, but is involuntary if, though

it involves a choice, is the result of duress.

Furthermore, it has been held that where the prosecutor has

made a promise, as was done herein, namely that a list of

creditors who claimed the petitioner owed them money would

be supplied to him, and concededly that promise has not been

kept, that, therefore, that would be a ground for vacating the

plea of guilty (Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621:

and Lepera v. United States, 9 Cir. 1978, 587 F.2d 433, 436,

n.4).

Furthermore, the prosecutor's failure to fulfill a plea bargain

promise, or to make proper promises, is not rendered harmless

15

by the Court’s refusal to follow the recommendation and the

Court’s awareness of impropriety, since a waiver incident to

a plea is not given in exchange for actual sentence or the im-

pact on the Judge, but for the prosecutor’s statements in Court,

and if they are not adequate, waiver is ineffective (Correale

v. United States, 1 Cir. 1973, 479 F.2d 944).

A sentence based upon a guilty plea induced by reliance on

an unfulfilled prosecution promise is void (United States v.

McCarthy, 1 Cir. 1970, 433 F.2d 591).

In addition, it should be noted that he minutes of plea clear-

ly reveal that the Judge indicated to the petitioner that he would

have up to five years to make restitution of $200,000.00. Yet,

the Judge, at the time of sentence, indicated that restitution

would have to be made over a 2 year period, later extended

to about 3 years. In any event, it was clearly in violation of

the promise given during the plea, and the state of mind of the

defendant when he took the plea (see Santobello v. New York,

supra, and Boykin v, Alabama, 395 U.S. 238, 89 S.Ct. 1709).

In addition, it has been held as a corollary that no plea of

guilty is voluntary if entered on advice of counsel, that fails to

meet the minimum standards of effectiveness derived from the

Sixth Amendment (McMann v. Richardson, 397 U.S. 759, 771,

90 S.Ct. 1441, 1449; Trahan v. Estelle, 5 Cir. 1977, 544 F.2d

1305, 1309; Johnson v. United States, 9 Cir. 1976, 539 F.2d

1241, 1243, cert. den. 431 U.S. 918, 97 S.Ct. 2182; United States

v. Scott, 5 Cir. 1980, 625 F.2d 623).

Furthermore, in Strader v. Garrison, 4 Cir. 1979, 611 F.2d

61, the Court of Appeals held that a conviction must be vacated

where it appears that a guilty plea would never nave been at-

tended if defendant had been properly advised.

In United States v. Crook, 5 Cir. 1979, 607 F.2d 670, the

Court held that when a defendant proposes to plead guilty, the

duty of defense counsel is to make certain that the plea is entered

voluntarily and knowingly.

16

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE

ERROR BY DENYING DEFENDANT-

PETITIONER’S MOTION TO WITHDRAW HIS

PLEA OF GUILTY AND GO TO TRIAL. DURING

A HEARING HELD ON THE MOTION TO

WITHDRAW THE PLEA, NOT ONLY DID DEFEN.-

DANT STATE THAT HE WAS INNOCENT AND

HAD NOT WANTED TO PLEAD GUILTY, BUT HIS

OWN TRIAL LAWYER TESTIFIED THAT THE

DEFENDANT WAS IN A STATE OF HYSTERIA

AND PROBABLY CONFUSED BY WHAT WAS GO.

ING ON,

The petitioner and one Rabbi Landau had been indicted on

about 124 counts, in Kings County, in connection with certain

real estate and related transactions. Landau was unquestionably

the main culprit, whereas the petitioner herein was described

as a person in Landau’s employ. The petitioner, however, main-

tained that he was merely a functionary and performed solely

ministerial tasks, and therefore was not involved in any

criminality whatsoever.

The defendant insisted upon going to trial and, as a matter

of fact, wrote several letters to his then attorney, Murray Cutler,

Esq., complaining about the delay and so forth.

After the trial had progressed about two weeks or so, there

was a colloquy at the bench, as a result of which a proffer to

plead guilty to one of the counts of the indictment was made.

Landau pleaded guilty, and the petitioner herein likewise

pleaded guilty. During the colloquy between the Court and the

petitioner, however, it is obvious, as we have indicated in the

Statement of The Case, supra, that petitioner was not respon-

ding unequivocally to the Court's inquiries as to whether or not

he was guilty and seemed to be injecting reservations into his

proffered plea.

Shortly after the plea was made, Kupferstein hired new

counsel and moved to withdraw the plea of guilty, stating,

among other things, that he was innocent, that he had been

17

cajoled into pleading guilty, and that he wanted to go to trial

and that he had never really intended to piead guilty.

The defendant-petitioner produced certain witnesses, in

cluding his own trial attorney as well as other attorneys, in-

dicating that he at all times had wanted to go to trial and had

consistently protested his innocence. His trial lawyer, Murray

Cutler, Esq., testified for the prosecution that the petitioner

had always told him he was innocent and wanted to go to trial

and that it was quite possible that at the time of the plea that

petitioner was confused and it was unquestionable that he was

also in a state of hysteria.

Other attorneys, such as Mr. Baron and Mr. Hessler, to say

nothing of the defendant himself, testified that he was very

dissatisfied with the work of his trial attorney, Mr. Cutler, and

had expressed these fears to these attorneys. He had not chang-

ed attorneys. He had not changed attorneys at that time because

the imminence of trial was of such a nature that it would be

impossible to get new counsel before trial.

The Court, unfortunately, let the hearing to withdraw the

plea degenerate into an excursion by the prosecutor to all facets

of the case, and well beyond. The Court permitted the pro-

secutors to explore the defendant's and his wife's financial con-

ditions, many facts concerning real estate operations, and zeroed

in very little upon his state of mind as to when he pleaded guil-

ty. We maintain the issue was whether or not the defendant

pleaded guilty knowingly, intentionally, and voluntarily, and

what his state of mind was at that time.

It was highly prejudicial and improper, we maintain, to have

permitted the prosecutor to go so far afield. The Court really

did not get down to the so-called “nitty gritty” of the issue

whether or not the defendant's state of mind was such that he

willfully, knowingly, and intentionally, as well as voluntarily,

pleaded guilty.

Shorn of its circumlocutory prolixities, the nub of the record

clearly reveals. without contradiction, that the defendant-

petitioner did not want to plead guilty and did not do so volun-

tarily and intentionally.

18

This is borne out not only by Kupferstein’s testimony, but

by that of his own attorney as well.

In People v. Granello, 18 N.Y.2d 823, the Court of Appeals

made it quite clear that in dealing with the issue of the

withdrawal of a plea of guilty, it is not sufficient for the Trial

Court to note that the defendant did not indicate any reserva-

tions when he answered the stereotyped questioning that takes

place during such a plea. The fact that denials as to prumises

or misunderstandings are made, the Court of Appeals said, are

not conclusive that they in fact were not made.

In the case at bar, however, the colloquy itself reveals strong

rese, vations and confusion on the part of the petitioner. Thus,

we maintain that the petitioner's statements at the time of the

colloquy during the plea of guilty are insufficient to warrant

denial of the relief of withdrawing his plea of guilty.

In Hunter v. Fogg, 470 F.Supp. 1041 (D.C. N.Y., 1979), rev'd

on other grounds, 616 F.2d 55, the Court heid that the defen-

dant’s pro forma acknowledgement that he understood the

sentencing scope and that there were no off-the-record promises

about sentence, were not necessarily controlling. The Court in-

dicated that where defendant seeks to withdraw the plea of guil-

ty on the grounds of a misunderstanding as to the sentencing

possibilities, there must be careful review nevertheless made.

In the case at bar, one of the conditions of the plea was that

petitioner return or refund $200,000 in restitution. Petitioner

stated that his agreement to that condition was ridiculous

because he doesn’t have anywhere near such fund, and could

not possibly have been expected to make such restitution. We

maintain that is another indicia of the absurdity of the plea.

On top of this, at the time of sentence the Court imposed a

very short schedule for payment of the $200,000, ignoring the

colloquy at the time of plea that petitioner would have five year

within which to refund money.

Thus in the Fogg case, supra, the Court nutcd that there is

a basis for withdrawal of such a plea.

See also, People v. Twiggs, 58 A.D.2d 726, 369 N.Y.S. 2d

277; People v. Moore (4th Dept.), 78 A.D.2d 997, 433 N. Y.S.2d

19

689; and People v. Rogers (1981, lst Dept.), 81 A.D.2d 564,

438 N.Y.S.2d 338.

In People v. Se?'koff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, cert.

den. 419 U.S. 1122, the Court of Appeals noted, in this leading

case, that plea negotiations serve laudable purposes.

Significantly, at page 235 of 35 N.Y.2d, 630 of 360 N.Y.S.2d,

the opinion in Selikoff explains:

“Where a defendant denies guilt, or if the court

believes defendant may be innocent, and the guilty

plea is not otherwise justified as knowing and in-

telligently made, the guilty plea may be and should

be rejected citing cases.”

In the case at bar, it is significant that the defendant has

denied his guilt on several occasions, and, indeed, his own trial

counsel, Murray Cutler, Esq., during the hearing as to whether

the guilty plea should be with withdrawn, conceded that at all

times his client insisted that he was not guilty and wanted to

go to trial.

Since a defendant is entitled to go to trial if he in fact is not

guilty and asserts that he did not intelligently and knowingly

waive trial by pleading guilty, it is obvious that he should be

permitted to have his plea back and go to trial. (see, e.g., Peo-

ple v. Beasley, 25 N.Y.2d 483, 307 N.Y.S.2d 39; People v. Nix-

on, 21 N.Y.2d 338, 351, 287 N.Y.S.2d 659, 668; People v. Ser-

rano, 15 N.Y.2d 304, 258 N.Y.S.2d 386; and North Carolina

v. Alford, 400 U.S. 25, 31-39, 27 L.Ed.2d 162).

In the case at bar as well, a perusal of the minutes of the

sentence itself will reveal that the Court set a much lesser time

for repayment of the $200,000 restitution than that promised

in the plea negotiations.

In other words, whereas at the time of plea the Trial Court

indicated that Kupferstein would have five (5) years within

which to repay the funds, at the time of sentencing he indicated

the time would be considerably less, and did not seem to recall

the promise.

20

Irrespective of that fact, which we believe in itself would war-

rant withdrawing the plea, Kupferstein has consistently main-

tained that he did not intentionally plead guilty; that he was

confused and near hysteria at the time, and that he is innocent,

so we submit that he should be given the right to go to trial.

POINT II

THE PETITIONER WAS DENIED A SPEEDY

TRIAL, IN VIOLATION OF THE FIFTH, SIXTH

AND FOURTEENTH AMENDMENTS OF THE

UNITED STATES CONSTITUTION.

In addition to the foregoing, the petitioner in the court below

had made a complaint to his own attorney, as well as to the

Court, that he was being denied speedy justice in violation of

his Constitutional rights under the Federal Constitution.

We maintain that this case, in the Trial Court, languished

for a very protracted period of time without being brought to

trial. A written motion by Petitioner's trial counsel to dismiss

for want of a speedy trial was denied. Petitioner was always

ready.

Mr. Kupferstein, the petitioner herein, had written, as well

as orally complained to this trial attorney about the inordinate

delay in bringing his case to trial. He was forced to suffer the

obliquy and disgrace of criminal charges without any oppor-

tunity to redress them, until finally the case was brought before

the Court.

We maintain that under the circumstances, this was a gross

violation of his right to a speedy trial.

See Klopper v. North Carolina, 386 U.S. 213, 87 S.Ct. 988;

Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564; Barker v. Wingo,

407 U.S. 514, 92 S.Ct. 2182; United States v. Marion, 404 U.S.

307, 92 S.Ct. 455; Dillingham v. United States, 423 U.S. 64,

96 S.Ct. 303; and, Strunk v. United Staies, 412 U.S. 434, 93

S.Ct. 2260.

Under the circumstances, we maintain that a grant of the

certiorari is warranted tor this reason as well.

21

CONCLUSION

The petition for certiorari should be granted and the relief

requested should be ordered, to wit, a vacating of the orders

of the Appellate Division and the judgment of the Supreme

Court, Kings County.

Respectfully submitted,

IRVING ANOLIK

A Member of the bar of this Court

Attorney for Petitioner.

APPENDIX

APPENDIX A

A-l

CERTIFICATE DENYING LEAVE

State of New York

Court of Appeals

BEFORE: HON. SOL WACHTLER, Associate Judge

THE PEOPLE OF THE STATE OF NEW YORK

against

BERNAT KUPFERSTEIN

CERTIFICATE DENYING LEAVE

I, SOL WACHTLER, Associate Judge of the Court of Ap-

peals of the State of New York, do hereby certify that, upon

application timely made by the above-named appellant for a

certificate pursuant to CPL 460.20 and upon the record the pro-

ceedings herein,* there is no question of law presented which

ought to be reviewed by the Court of Appeals and permission

to appeal is hereby denied.

Dated at Mineola, New York

June 1, 1984

Associate Judge

* Description of Order: Judgment of Supreme Court, Kings, September 24,

1982; affirmed by Appellate Division, Second Department, April 9, 1984.

APPENDIX B

B-1

OPINION OF

APPELLATE DIVISION: SECOND DEPARTMENT

CUY J. MANGANO, J.P.

DAVID T. GIBBONS

MOSES M. WEINSTEIN

JAMES F. NIEHOFF, JJ.

a en A - March 13, 1984

1886 E The People, etc., respondent, v

Bernat Kupferstein, appellant.

(Ind. No. 4129/77)

Irving Anolik, New York, N.Y., for appellant.

Elizabeth Holtzman, District Attorney, Brooklyn,

N.Y. (Barbara D. Underwood, Michael Gore and

Janet M. Berk of counsel), for respondent.

Judgment of the Supreme Court, Kings County (LODATO, J.),

rendered September 24, 1982, affirmed. No opinion.

MANGANO, J.P., GIBBONS, WEINSTEIN

and NIEHOFF, JJ., concur.

April 9, 1984 PEOPLE v KUPFERSTEIN, BERNAT 1886 E

APPENDIX C

C-1

ORDER ON APPEAL FROM JUDGMENT OF CONVICTION

At a Term of the Appellate Division of the Supreme Court

of the State of New York, Second Judicial Department,

held in Kings County on April 9, 1984

HON. GUY J. MANGANO, Jutice Presiding,

HON. DAVID T. GIBBONS,

HON. MOSES M. WEINS‘EIN, Associate Judges

HON. JAMES F. NIEHOFY.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

V.

BERNAT KUFPERSTEIN,

Appellant,

Order on Appeal from Judgment of Conviction

In the above entitled action, the above named Bernat

Kupferstein, defendant in this action, having appealed to this

court from a judgment of the Supreme Court, Kings County,

rendered September 24, 1982; and the said appeal having been

argued by Irving Anolik, Esq., of counsel for the appellant, and

argued by Janet M. Berk, Esq., of counsel for the respondent,

and due deliberation having been had thereon; and upon this

court’s decision slip heretofore filed and made a part hereof,

it is: ORDERED that the judgment appealed from is hereby

unanimously affirmed.

Enter: s/ Irving N. Selkin

Clerk of the Appellate Division