People v Gonzalez

[*1] People v Gonzalez 2012 NY Slip Op 51246(U) Decided on June 29, 2012 Supreme Court, Bronx County Price, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 29, 2012
Supreme Court, Bronx County

The People of the State of New York

against

Raphael Gonzalez, Defendant.



3258-1996



Goldstein & Weinstein, Esq.

Counsel for Defendant

Justin Braun

Assistant District Attorney

Office of the Bronx District Attorney

Richard L. Price, J.

By motion submitted April 11, 2012, defendant moves to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10 (1) (h). After review of the motion papers, papers on file with the court, and prior court proceedings, defendant's motion is denied.

I. Background and Procedural HistoryOn May 2, 1996, the defendant, Rafael Gonzalez, was arrested and charged with criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), all class B felonies.

On September 11, 1996, defendant filed a motion with this court to inspect the grand jury minutes for legal sufficiency, suppress the physical evidence obtained, and receive a pre-trial Sandoval hearing. Upon inspection of the grand jury minutes, this court granted defendant's motion on November 5, 1996, to the extent that it dismissed the third count in the indictment, one of the two counts of criminal possession of a controlled substance in the third degree, on the grounds that the People's charge on the law was legally insufficient. The other count of criminal possession of a controlled substance in the third degree and the charge of criminal sale of a controlled substance in the third degree were retained.

On August 6, 1997, judgment was entered by this court against the defendant upon his plea of guilty to criminal possession of a controlled substance in the seventh degree (Penal Law § [*2]220.03), a class A misdemeanor. Defendant was sentenced to time served, and received a recommendation from both the People and this court that he would not be held in violation of the terms of his probation imposed in connection with a prior felony conviction. That judgment of conviction

was entered in Supreme Court, Bronx County, on November 17, 1995, under indictment 7671-1995, upon his guilty plea to attempted criminal sale of controlled substance in the third degree (Penal Law §§ 110/220.39 [1]), a class C felony. Defendant was sentenced on that conviction to a period of five years probation with an initial term of six months imprisonment.

Pursuant to defendant's August 6, 1997, plea allocution, this court specifically inquired whether or not he understood that his plea may subject him to deportation proceedings by the federal government, to which the defendant responded "yes" (Defendant's Exhibit A, pp. 4-5). This court also advised defendant that by pleading guilty he was waiving his right to appeal, which he acknowledged. In fact, no appeal was taken.

On July 8, 2009, the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), initiated removal proceedings against the defendant, a citizen of the Dominican Republic, under § 237 (a) (2) (B) (i) of the Immigration and Nationality Act ("INA") by serving him with a Notice to Appear ("NTA"). The NTA alleges that he is subject to removal from the United States based on his 1997 conviction, which violated the Lawful Permanent Resident Status he received upon arriving in the United States on March 11, 1995.

Defendant now moves to vacate the judgment of conviction entered against him on August 6, 1997, pursuant to Criminal Procedure Law § 440.10 (1) (h) and Padilla v Kentucky (130 S Ct 1473 [2010]), on the grounds it was obtained in violation of the Sixth and Fourteenth Amendments of the United States Constitution and article I, § 6 of the New York Constitution. Specifically, defendant claims plea counsel, Fred Bittlingmaier, rendered ineffective assistance of counsel because he was "never told by [his] attorney, that [his] guilty plea in this case, when considered together with [his] prior convictions, would require [his] automatic deportation from the United Sates and denial of naturalization" (Defendant's Affidavit ¶2). Defendant concedes, however, that during the allocution, this court advised him that as a result of entering a guilty plea, he might be subject to deportation (id ¶3), although he faults Mr. Bittlingmaier for neglecting to explain the immigration consequences to him when advised of them by the court. Defendant further contends that "[he] would never have pled [sic] guilty if [he] was advised that [he] would be deported from the United States or denied naturalization as a result of the plea" (id ¶2).

The People, in opposing defendant's motion, argue that: (1) defendant's claim is record-based and should have been raised on direct appeal (see CPL 440.10 [2] [c]); (2) defendant fails to satisfy his burden of coming forward with sworn allegations sufficient to substantiate the essential facts set forth in his moving papers (see CPL 440.30 [4] [b], [d] [i], [ii]); (3) defendant is unable to demonstrate counsel's alleged failure resulted in prejudice; (4) plea counsel effectively negotiated an advantageous disposition; (5) the court's explanation of possible deportation was not misleading; and, (6) Padilla does not apply retroactively.

II. Criminal Procedure Law § 440.10 (2) (c)[*3]The District Attorney argues that defendant's motion must be summarily denied pursuant to Criminal Procedure Law § 440.10 (2) (c) because his claim is record-based and should have been raised on direct appeal. This court disagrees. CPL 440.10 (2) (c) provides as follows:

2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when: . . .

(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him (CPL 440.10 [2] [c]).

The District Attorney correctly states that issues regarding sufficiency of a plea colloquy are by nature record-based, and must be brought on direct appeal. Ineffective assistance of counsel claims, however, are usually raised through a collateral attack. The avenue for pursuing such claims is CPL 440.10, which provides that "[a]t any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment" (CPL 440.10 [1]). A judgment may be vacated when "[t]he judgment was procured by duress, misrepresentation or fraud on the part of the court or a person acting for or in behalf of a court or a prosecutor" (CPL 440.10 [1] [b]), or in situations when "[i]mproper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom" (CPL 440.10 [1] [f]).

It is well established that "in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by [a] collateral or post[-]conviction proceeding brought under CPL 440.10" (People v Brown, 45 NY2d 852, 853-854 [1978]; see also Cruz v Berbary, 456 F Supp 2d 410, 414 [2006], ["Denial of a CPL 440.10 motion, pursuant to 440.10 (2) (c), will not always be appropriate in the ineffective assistance context, such as when the facts supporting the instance of ineffective assistance of counsel appeared outside the record"]).

Indeed, the difficulty with reviewing ineffective assistance claims is that they are subject to reasonable disagreement as to whether or not they are reviewable on the record. The reason is that they are often in part record based, and in part non-record based. As the Supreme Court explained, "when [an ineffectiveness] claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record that is not developed precisely for the purpose of litigating or preserving the claim and thus often incomplete or inadequate for this purpose" (Massaro v United States, 538 US 500, 504 [2003])." The trial court is "the forum best suited to developing the facts necessary to determining the adequacy of representation during an entire trial (Massaro at 505)."

Though the general purpose of CPL 440.10 [2] (c) is to prohibit a defendant from using CPL 440.10 as a substitute for direct appeal, such a procedural bar is typically ill-suited to ineffective assistance of counsel claims. Defendants are therefore permitting to make such motions because the trial record will often be insufficient and need to be supplemented (see [*4]People v Harris, 109 AD2d 351, 360 [2d Dept 1985]). Thus, a court's obligation to address the merits of an ineffective assistance claim may obviate consideration of a procedural bar (Horton v Ercole, 557 F Supp 2d 308, 316 n 5 [2008]; see Greiner v Wells, 417 F3d 305, 318 n 14 [2d Cir. 2005]).

In this case, the advice that defendant may or may not have received would not have explicitly appeared on the record, separate and apart from whatever information this court imparted to him during the allocution. Accordingly, defendant's motion is not procedurally barred.

III. Defendant's Burden to Allege Issues of Fact

Pursuant Criminal Procedure Law § 440.30 (4), the court may, upon considering the merits of the motion, deny it without a hearing if the motion is based upon essential facts without sworn allegations substantiating or tending to substantiate them (see CPL 440.30 [4] [b]), or an allegation of fact essential to support the motion is either contradicted by a court record or other official document, or made solely by the defendant unsupported by any other affidavit or evidence, and there is no reasonable possibility that such allegation is true (see CPL 440.30 [4] [d] [i], [ii]). A judgment of conviction is presumed valid, and a defendant moving to vacate his judgment has the burden of coming forward with sworn allegations sufficient to create an issue of fact (see CPL 440.30 [4] [b], [d] [i], [ii]).

Here, as discussed below, defendant relies upon an equivocal affidavit from plea counsel that provides no support for his claim. As defendant's counsel, he would be the only individual from whom evidence substantiating defendant's claim can be adduced (see CPL 440.30 [4] [b]). Without further evidence to support his claim, then, defendant is unable to meet his burden of establishing that counsel's performance was ineffective. Accordingly, "there is no reasonable possibility that the allegation is true" (CPL 440.30 [4] [d] [ii]).

IV. Ineffective Assistance of Counsel

a. Federal Standard

In order to establish ineffective assistance of counsel under the federal standard, a defendant must demonstrate both that counsel's representation fell "below an objective standard of reasonableness," as judged by the prevailing norms of practice, and a showing of prejudice (Strickland v Washington, 466 US 668, 688 [1984]). Regarding prejudice, the test is whether or not "but for counsel's unprofessional errors, the result of the proceedings would have been different" (Strickland at 694).

Since the performance and prejudice elements set forth in Strickland may be addressed in either order, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies" (Strickland at 688). "[I]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed" (Strickland at 697). Then, only after determining that the defendant has been prejudiced must the court consider counsel's performance. [*5]

i. Prejudice

Essentially, defendant's motion is based on the dubious assumption that Mr. Bittlingmaier's failure to advise him of the potential immigration consequences associated with pleading guilty constitutes per se ineffective assistance of counsel. He must, however, establish that was prejudiced by counsel's allegedly deficient performance. To do so in a plea bargain context, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial (Hill v Lockhart, 474 US 52, 59 [1985]). That is, "to obtain relief a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances" (Padilla, 130 S Ct at 1485).

In Padilla, the Supreme Court imposed an affirmative duty on defense counsel to provide accurate advice to a non-citizen defendant concerning the potential immigration consequences of pleading guilty (Padilla v Kentucky, 130 S Ct 1473 [2010]). Padilla gives some guidance as to the scope and nature of legal advice that courts should require of practitioners in the immigration context. Padilla, a lawful permanent resident in the United States for over 40 years, pleaded guilty to drug-distribution charges in Kentucky and faced deportation as a consequence of his conviction (Padilla at 1473). Padilla claimed that his counsel "not only failed to advise him of this consequence prior to entering the plea, but also told him that he did not have to worry about immigration status since he had been in the country so long" (Padilla at 1478). The Court, stating that it was "not a hard case" to conclude counsel's performance was constitutionally deficient, found that "[t]he consequences of Padilla's plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect" (Padilla at 1477).

Thus, at least where the "terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence[s] for . . . conviction," constitutionally, competent counsel must advise a defendant that his conviction makes him subject to mandatory deportation (Padilla at 1477). To be sure, what Padilla does not do is suggest that every defense counsel be an expert on the complex immigration laws that police our country. Rather, it merely requires that where the relevant immigration statute is clear and explicit in defining the removal consequences, counsel is expected to advise the client accordingly. Where, however, the "consequences of [defendant's] . . . plea[s] . . . [were] unclear or uncertain" (Padilla at 1483), plea counsel would be constitutionally obliged to "do no more than advise [defendant] that pending criminal charges may carry a risk of adverse immigration consequences" (People v Cristache, 29 Misc 3d 720 [Crim Ct, Queens County 2010, Zayas, J]; see People v Marino-Affaitati, 88 AD3d 742, 744 [2d Dept 2011], lv denied 18 NY3d 995 [2012]).

The defendant, as in Padilla, pleaded guilty to a drug offense: criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), a class A misdemeanor. Pursuant to INA § 237 (a) (2) (B) (i), then, his deportation was presumptively mandatory. Mr. Bittlingmaier therefore had an affirmative duty to inform him of possible deportation consequences of pleading guilty. Aside from whether or not he breached that duty, defendant fails to establish that he suffered immigration-related consequences solely as a result of his alleged misadvise.

[*6]I

In support of his motion, defendant supplies a pithy affidavit from Mr. Bittlingmaier that provides little, if any, evidentiary value. In it, Mr. Bittlingmaier claims to have "no present recollection as to whether or not [he] discussed the immigration consequences of the defendant's guilty plea with Mr. Gonzalez prior to the entry of the plea," and that if any such conversations had occurred that "[he] has no recollection of the substance thereof" (see Defendant's Exhibit A, Bittlingmaier Affirmation). Such a lackluster statement hardly establishes that a conversation did not occur. While it is understandable that Mr. Bittlingmaier may not have an independent recollection of the defendant or his case, he conspicuously fails to explain whether or not he made notes contemporaneous with his representation, why he did not review them before preparing his affidavit, and, if unable to locate them, what effort he made to do so.

But, even assuming Mr. Bittlingmaier neglected to properly advise the defendant that deportation was possible, the defendant fails to establish that he was prejudiced by it. As noted, defendant previously pleaded guilty in 1995 to attempted criminal sale of controlled substance in the third degree (Penal Law §§ 110/220.39 [1]), a class C felony. Accordingly, even if defendant had not entered his 1997 guilty plea, his 1995 conviction could have also subjected him to removal proceedings under § 237 (a) (2) (B) (i) of the INA. And, it is significant to note that for federal immigration law purposes, "a non-citizen's guilty plea to a removable offense may still be considered a conviction' of a removable offense even where the guilty plea is later vacated" (Cristache, 29 Misc 3d 720; see also Saleh v Gonzales, 495 F 3d 17, 24 [2d Cir 2007]).

II

Defendant also fails to demonstrate that there is a reasonable probability he would not have pleaded guilty but for Mr. Bittlingmaier's alleged misadvice. As noted, the defendant was charged with criminal sale of a controlled substance in the third degree (PL § 220.39 [1]) and criminal possession of a controlled substance in the third degree (PL § 220.16 [1]), both class B felonies. Under the 1997 sentencing structure, defendant faced a determinate term of imprisonment from nine to twenty-five years (PL § 70.06 [3] [b]). Despite such exposure, defendant wants this court to believe that he would never have pleaded guilty had he known it would lead to removal from the United States, and would have instead elected to proceed with a trial because he "was simply present, together with a number of other people, in the vicinity of a location where the police recovered drugs on the street."

Regardless of the "triable" nature of his case, it is beyond a cavil that with a prior felony conviction, for drugs no less, he would have risked another felony conviction, violation of probation, and a maximum of twenty-five years imprisonment (with a mandatory minimum of nine years), only to then face deportation. Instead, it is more likely that when presented with an opportunity to avoid both a second felony conviction and imprisonment, he was only too willing to avail himself of it— irrespective of possible deportation—especially considering the increased likelihood of being identified for removal while incarcerated (Cristache at 737).

Defendant's self-serving protestation is further belied by this court's plea allocution, which specifically included an inquiry of his awareness that collateral immigration consequences existed. While this court does not hold that its inquiry provided an adequate replacement for counsel's professional advice, it is interesting that at no time during the allocution did the [*7]defendant question, comment, or seek clarification over the possibility of deportation. Perhaps more perplexing is that he appeared unmoved, expressed no concern, and requested no time to discuss the matter with Mr. Bittlingmaier. If, as defendant asserts, Mr. Bittlingmaier had indeed neglected to discuss the possibility of deportation with him, this court believes he surely would have.

Of course, there may be instances where it is accurate to say that "preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence" (Padilla, 130 S Ct at 1483). But apart from any time spent in jail between arrest and plea, defendant avoided a substantially lengthy term of imprisonment. Accordingly, the weight of such an advantageous plea agreement sufficiently overcomes any claim made by the defendant that it is reasonably probable he would not have pleaded guilty if had he been better informed. Simply stated, defendant cannot "convince th[is] court that a decision to reject the plea bargain would have been rational" had he been fully informed of the immigration consequences of his plea (Padilla, 130 S Ct at 1485).

ii. Performance

In the absence of prejudice, it is unnecessary for this court to determine whether counsel's performance fell below an "objective standard of reasonableness" (Strickland, 466 US at 687-88; see Benevento, 91 NY2d 708 [1998]). Nevertheless, it is worth noting that in the context of a guilty plea, a defendant receives meaningful representation when he obtains "an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404 [1995]). Once a defendant acquires a favorable plea bargain, then, "it cannot be concluded that defendant was denied effective assistance of counsel" (People v Black, 247 AD2d 238, 238 [1st Dept 1998]).

As indicated, defense counsel, Mr. Bittlingmaier, procured an exceptionally favorable plea arrangement that netted defendant a misdemeanor conviction, time served, and a recommendation from the People that he would not be declared in violation of the terms and conditions of his probation imposed on his 1995 conviction. This, in the context of his exposure to a maximum determinate term of twenty-five years imprisonment (with a mandatory minimum of nine years) in the event he would have been convicted after trial, is an extraordinarily advantageous disposition. In light of such a beneficial plea offer, and the sheer lack of evidence of counsel's ineffectiveness, defendant undoubtedly received meaningful representation (Ford, 86 NY2d at 404; Black, 247 AD2d at 238).

b. New York Standard

"Under the New York standard, a defendant is not required to fully satisfy the prejudice test of Strickland'" (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 284 [2004]). Rather, the only "question is whether the attorney's conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial" (Benevento, 91 NY2d at 713). A defendant need not prove that the outcome of the case would have been different but for such errors, rather only that he was deprived of a fair trial overall (Caban, 5 NY3d at 155-56). Perfect representation, therefore, is not required (Benevento, 91 NY2d at 712). [*8]

Like the performance prong in Strickland, however, New York law provides that "a defendant must show that [his] attorney's performance fell below an objective standard of reasonableness" (Rosario v Ercole, 601 F3d 118, 124 [2d Cir 2010]). Under Article I, §6, of the New York State Constitution, success of an ineffective assistance of counsel claim rests on whether "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v Henry, 95 NY3d 143, 152 [2005], quoting People v Baldi, 54 NY2d 137, 164-67 [1981]). "The sufficiency of defendant's factual allegations as to prejudice should be evaluated with reference to the face of the pleadings, the context of the motion and defendant's access to information" (People v McDonald, 1 NY3d 109, 115 [2003]).

Defendant received a dramatically reduced sentence because of counsel's skill and effort in obtaining a favorable disposition. As indicated, there is simply no reasonable possibility that defendant would have risked trial, conviction, a lengthy term of imprisonment and subsequent deportation, where he was exposed from nine to twenty-five years imprisonment. His claim is hardly persuasive. Accordingly, he cannot establish prejudice under either the state or the federal standards. Consequently, this court need not consider or address the People's argument that Padilla should not be retroactively applied.

V. Conclusion

For the reasons stated above, this court finds that the defendant, in fact, received effective assistance of counsel at all stages of the proceedings, and that defendant's plea was voluntary, knowing, and intelligent (see People v Wiggins, 89 NY2d 872 [1996]; People v Ford, 86 NY2d 397, 404 [1995]; see also Strickland v Washington, 466 US 668 [1984]). Defendant's motion to vacate his judgment of

conviction pursuant to CPL 440.10(1)(h) is therefore denied in all respects.

This constitutes the decision and order of the court.

Dated: June 29, 2012

E N T E R

________________________________Richard Lee Price, J.S.C.