Gelman v. Artuz

88 F. App'x 463

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and hereby is AFFIRMED.

In October 1986, petitioner Gregory Gel-man was indicted by a New York County grand jury for first-degree arson and related charges concerning the February 24, 1986 fire to an apartment building owned by petitioner. On June 19,1987, petitioner waived his right to a jury trial, and the parties proceeded to a bench trial. Petitioner was convicted of first-degree arson and two other charges, and the court sentenced him to concurrent indeterminate terms of fifteen years to life, seven to twenty-one years, and two and one-third to seven years.

Petitioner moved to set aside his conviction, pursuant to New York Criminal Procedure Law § 330.30,

* asserting, among other things, that his waiver of his right to a jury trial had not been knowing, voluntary, and intelligent, because it had been improperly influenced by an ex parte communication between petitioner’s counsel and the trial court’s law secretary. A hearing was held before a different judge, who, in a written decision, denied petitioner’s motion. See People v. Gelman, Supreme Court of the State of New York, Ind. No. 7064/86 (New York County Mar. 29, 1988). On direct appeal, in which petitioner again asserted his jury waiver claim, the Appellate Division affirmed by opinion petitioner’s conviction, see People v. Gelman, 240 A.D.2d 181, 658 N.Y.S.2d 872 (1st Dep’t 1997), as did the New York Court of Appeals, see People v. Gelman, 93 N.Y.2d 314, 690 N.Y.S.2d 520, 712 N.E.2d 686 (1999). Petitioner thereafter sought habeas relief in the District Court below, asserting the jury waiver claim and one other ground for relief. On the recommendation of Magistrate Judge Michael H. Dolinger, the District Court dismissed the petition by order dated March 12, 2003, but granted a certificate of appealability with respect to the jury waiver issue.

Having reviewed the record and considered the arguments of the parties, we conclude, for substantially the reasons stated in the thorough report of the magistrate judge, that petitioner’s claim is without merit. Accordingly, the judgment of the District Court is hereby AFFIRMED.

That statute provides in relevant part:

At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon ... [a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.

N.Y.Crim. Pro. Law § 330.30(1).