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State judges are not required to deliver a list of every constitutional right that is being waived by a defendant making a guilty plea, a federal judge has ruled. Southern District Judge Colleen McMahon, ruling in the case of a man accused of criminal contempt for violating an order of protection, said that “as long as the record made by the State court reflects a defendant’s knowing and voluntary choice to plead guilty, there is no basis to disturb the plea.” Judge McMahon refused to adopt the recommendation of Magistrate Judge Margaret Smith, who had found that a writ of habeas corpus should be granted the defendant in Hanson v. DeBois, 03 Civ. 5671. The petitioner, Paul Hanson, admitted contacting a woman by phone in direct violation of a court order. He pleaded guilty to second-degree criminal contempt, a misdemeanor, before Middletown City Court Judge Michael Schwartz in March 2002. Judge Schwartz told Mr. Hanson he was waiving his right to appeal by pleading guilty but made no inquiry into other rights Mr. Hanson was giving up. Mr. Hanson moved to withdraw his guilty plea, saying “he truly did not understand what was coming,” after the plea, including a jail sentence of up to one year. He claimed to have been under “an enormous amount of stress and pressure” and said he was on medication for head injuries suffered in a motorcycle accident. Judge Schwartz denied the motion to vacate the plea. Mr. Hanson’s attempts to overturn that decision were rejected at the Appellate Term, which found that Judge Schwartz’s advice on his waiver of rights was constitutionally sufficient. Considering his petition for a writ of habeas corpus, Magistrate Judge Smith said the City Court’s inquiries ran afoul of the U.S. Supreme Court’s decision in Boykin v. Alabama, 395 U.S. 238 (1969). In Boykin, the Supreme Court said a state court judge has a duty to discuss the matter “with the accused to make sure he has a full understanding of what the plea connotes and of its consequence” in order to “satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of offenses.” Magistrate Judge Smith said their were a number of problems with Mr. Hanson’s allocution under the Boykin standard, including that the court “failed to ensure” Mr. Hanson knew about “his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers.” There was also, she said, “no record that the court asked the Petitioner whether defense counsel had explained the plea and its consequences to him,” Quoting Boykin, the magistrate judge said, “The court cannot ‘presume a waiver’ of federal constitutional rights ‘from a silent record.’ “ The prosecution had argued that adoption of the magistrate’s recommendation would amount to the novel imposition on state courts of a “specific series of questions” in plea allocutions. State Court Practice Judge McMahon agreed. “It is true that Petitioner was not specifically advised about his right not to testify against himself, his right to confront his accusers, his right to a unanimous verdict or his right to have counsel represent him during all stages of the proceedings,” she wrote. “However, the Supreme Court has never specifically imposed that requirement on state tribunals.” Calling the City Court’s inquiry “not as artful as it could (or perhaps should) have been,” Judge McMahon nonetheless said the inquiry “actually comports” with the requirements set forth in Boykin. Moreover, she said, the City Court was “acting in full conformity” with the New York Court of Appeals decision in People v. Harris, 61 NY2d 9 (1983). The Harris Court said, “Though a rigorous and detailed colloquy may be appropriate in certain instances, under most ordinary circumstances such questioning by the Trial Judge would be an unnecessary formalism.” The Harris Court also said, “Presuming waiver from a silent record is impermissible,” and the record must, at a minimum, show that the defendant “intelligently and understandingly rejected” his constitutional rights. Harris, Judge McMahon said, has controlled plea allocutions in New York state for 20 years. “It would be strange indeed to learn today, 20 years after Harris, that thousands of misdemeanor pleas were constitutionally deficient because the trial judge did not raise particular specific issues with the defendant prior to concluding that a plea had been entered knowingly and voluntarily,” Judge McMahon wrote. She also took note that, while the U.S. Supreme Court has never announced whether Boykin applies to misdemeanors, “there is nothing in either its language or its rationale that so limits the constitutional mandate.” Finally, saying that “reasonable jurists could find that the Appellate Term’s decision was unreasonable,” Judge McMahon said she would issue a certificate of appealability to the U.S. Court of Appeals for the Second Circuit. Orange County Assistant District Attorney Andrew R. Kass represented the state. Kerry A. Lawrence and Audrey E. Stone of Bricetti, Calhoun & Lawrence in White Plains represented Mr. Hanson.

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