People v Bonilla

[*1] People v Bonilla 2012 NY Slip Op 51407(U) Decided on July 30, 2012 Supreme Court, Bronx County Massaro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 30, 2012
Supreme Court, Bronx County

The People of the State of New York,

against

Rene Bonilla, Defendant.



46762C-2005



For People of the State of New York

Robert T. Johnson, Esq.

District Attorney, Bronx County

by: Robert R. Sandusky, Esq., of Counsel

For Defendant

Rene Bonilla, Pro Se

Green Haven Correctional Facility, PO Box 4000

Stormville, New York 12582

Dominic R. Massaro, J.

Pursuant to CPL §440.10, Defendant Rene Bonilla, pro se, moves to vacate the judgment of conviction against him, which Defendant maintains was entered by the Court on May 11, 2007.[FN1] The Court notes the judgment was actually rendered on June 14, 2007, and amended on October 29, 2007, and sentenced him to consecutive prison terms of 25 years to life and 25 years, respectively, for Murder in the Second Degree (Penal Law §125.25) and Attempted Murder in the Second Degree (Penal Law §110.00 and Penal Law §125.25)(see, People v. Bonilla, 57 AD3d 400 [1st Dept. 2008]). In addition to other relief requested, Defendant demands an evidentiary hearing.

Defendant's styles his motion as based upon CPL §§440.10 (b), ( c ), (g) and (h); however, these sections do not exist. Instead, the Court will treat his claims as invoking appropriate subsections of CPL §440.10(1). With this in mind, the Court summarizes Defendant's application as requiring dismissal of the judgment of conviction because, in essence, (1) the indictment is defective in form; (2) trial counsel rendered ineffective assistance by failing to move to dismiss the indictment; (3) Defendant was denied his right to testify before the grand jury; (4) certain statement used at trial against Defendant were obtained under medical duress; and (5) trial counsel's ineffective assistance caused when she failed to move for suppression of medically coerced statements.

Background

Defendant is now housed at Green Haven Correctional Center in Dutchess County where he is [*2]serving consecutive prison terms of twenty five years to life and twenty five years. He was convicted of murdering Naiesha Pearson, a child, and shooting Leonardo De'Arza, both on September 5, 2005, on East 139th Street in Bronx County. The Appellate Division affirmed the convictions and found no reason to modify the sentence (see, People v. Bonilla, supra.).

The lynchpin of Defendant's application is that his appointed counsel failed to react to alleged abuse by investigating officers following his injuries in a three story fall occurring during his arrest. Defendant alleges the officers refused him medical treatment until questioning was complete, thereby undermining the validity of statements allegedly used against him at trial. These statements, he says, were coerced while he was in extensive pain. Further, Movant says the instant application must be viewed within the context of a defendant who unsuccessfully moved to remove trial counsel during the actual trial. Despite apparent conflict, Attorney Amy T. Attias continued to represent Defendant during both the trial and sentencing proceedings.[FN2]

Critical to evaluating ineffective assistance of counsel and whether certain statements were medically coerced is that trial counsel moved for a Huntley hearing pretrial (Webber, J) to decide the issue of whether statements, presumably including the affidavit taken at the arrest scene, should be suppressed. The Court ordered the Huntley hearing (see, Exhibit 7)[FN3] which was conducted (Gross, J.) on April 26, 2007. At the hearing, the Court denied Defendant's motion. No copy of the decision was included in the record and the prosecutor reports that his office does not possess a copy of the decision or the hearing's transcript.

Defendant's Position

In presenting his pro se case, Defendant primarily stresses denial of his constitutional right to effective legal assistance. He characterizes his counsel's effectiveness as deficient because she failed to research charges against him, including the defectiveness of the indictment, and her lack of knowledge of cases involving police officers obtaining statements from an injured defendant by withholding medical treatment (see generally, People v. Bennett, 29 NY2d 462 [1972]). Defendant's says his trial counsel failed to challenge the indictment even though it did not provide adequate notice of the charges against him by its failure to recite penal law provisions upon which the charges were based (see generally, People v. Salvato, 124 Misc 2d 131 [Sup Ct. New York 1984]). Accordingly, Defendant posits such failures deprive the Court of jurisdiction over him and requires the indictment's dismissal.

Focusing upon the grand jury aspects, Defendant says denial of his right to testify before the grand jury amounts to a sixth amendment violation (see also, CPL 190.50[5][a]). Defendant says the District Attorney gave no grand jury notice even though such notice is a fundamental constitutional right that a defendant can only knowingly waive (see generally, Boykin v. Alabama, 395 US 238 [1968]). Further, Defendant characterizes the police questioning while he was injured as constituting constitutional violations when later used against him at trial.

Prosecutor's Position

In his answering papers, the District Attorney argues Defendant's application, including the ineffective assistance of counsel charges, is merit less and lacks evidentiary support. In essence, the prosecutor says, the motion should be dismissed without a hearing because the moving papers do not contain sufficient allegations and lack evidence to support ineffective assistance and the other grounds Defendant argues. Because a judgment of conviction is presumed valid, Defendant must meet the burden [*3]of coming forward with allegations supporting vacating the judgment (see, People v. Session, 34 NY2d 254 [1974]).

Concerning the defective indictment, the prosecutor says the instrument properly lists penal law provisions, especially for the critical counts 1 and 3 (Defendant's Exhibit 1). Further, the prosecutor points out that Defendant cited appropriate penal provisions in his pro se motion for new counsel (see, People's Affirmation, page 4). In further support of the indictment's correctness, the District Attorney says no particular indictment form is constitutionally mandated and the only requirement is that the instrument sufficiently state the crime's elements (see generally, People v. Iannone, 45 NY2d 589 [1978]). Counsel's ineffective assistance of counsel must be denied because evidence is missing that the proceedings were unfair as a whole (see generally, People v. Benevento, 91 NY2d 708 [1988]). Further, undermining Defendant's basic premise, the prosecutor notes counsel's challenge to the indictment's sufficiency in her omnibus motion (see, Exhibit 7). Finally, Defendant's failure to raise the issue of a sufficient indictment on direct appeal which forecloses that relief now (see, CPL §440.10[2][c]).

Concerning other constitutional issues, the prosecutor disregards Defendant's claims concerning the right to testify before the grand jury. Such arguments were required to be raised upon direct appeal and must now be denied (CPL §440.10[2][c]). Further, the prosecutor has no obligation to inform a target that a case is being submitted to the grand jury (CPL §190.50[5][a]) and there is no evidence Defendant notified the District Attorney of his intent to testify before the Grand Jury.

As to statements obtained while in pain following the three story fall, the District Attorney characterizes Defendant's suppression claims as baseless. Many statements were in fact recorded at Jacobi Hospital and not at the scene of the accident and were subject to a Huntley hearing (see, Exhibits 6 to 9). Concerning the affidavit signed at the scene, Defendant failed to raise objection even when asked by an Assistant District Attorney. Likewise, Defendant was required to raise the claim on direct appeal.

Finally, any claim that Attorney Attias' was unaware of critical case law lacks evidentiary support. Significantly, Defendant submitted no affidavit from her and stated no reason for not so submitting (see, CPL §440.30[4][b]) (see generally, People v. Ozuna, 7 NY3d 913 [2006]). Unquestionably, the prosecutor says, counsel filed appropriate motions and advanced appropriate arguments concerning the officers' alleged denial of medical attention constituted duress against her client (see generally, People v. Barshai, 100 AD2d 253 [1st Dept. 1984]).

Stated another way, the prosecutor maintains that counsel's representation was meaningful, did not fall below an objective standard of reasonability, and no possibility exists that the results would have been different absent counsel's mistakes (see generally, Strickland v. Washington, 466 US 668 [1984]). Finally, the prosecutor urges that the Court to consider that the People would be prejudiced if Defendant's relief is granted (see generally, Blackledge v. Allison, 431 US 63[1977]).

Defendant's Reply

In reply papers, Defendant rejects criticism that he failed to submit an affirmation from his trial counsel and to otherwise explain why he failed to do (see generally, People v. Radcliffe, 298 AD2d 533 [2nd Dept. 2002]). Such error is excused by Defendant's layman status. Likewise, he should be excused for his failure to notify the District Attorney of his desire to testify before the grand jury (see generally, Powell v. Alabama, 287 US 45 [1932]). Requiring Defendant to submit affidavits while refusing an evidentiary hearing under these circumstances is wasteful and contrary to seeking justice (see generally, People v. Sherk, 269 AD2d 755 [4th Dept. 2000]). Finally, Defendant disregards the prosecutor's notion that his motion must be dismissed because the issues could have been raised on direct appeal. Defendant says he lacked a complete record to file those issues on appeal at the time of the actual appeal and in fact requested appellate counsel to raise the issues.

Defendant feels he meets the burden needed to establish that trial counsel provided ineffective [*4]assistance of counsel because the proceedings were unfair to him (see generally, People v. Baldi, 54 NY2d 137 [1981]). In essence, Defendant says, no prejudice exists to the People because Defendant is pro se with limited legal knowledge.

Legal Discussion

Defendant's motion is granted, in part, and denied, in part.

Focusing first upon Defendant's claim that he was constitutionally injured by his inability to testify before the grand jury before indictment, the Court agrees with the District Attorney that under these circumstances there was no constitutional or statutory obligation to advise Defendant of his case's presentment to the grand jury.

Under CPL §190.50(5)(a), a district attorney is not obliged to inform a person that a grand jury proceeding is pending, in progress, or about to occur, unless such person is a defendant who has been arraigned in a local criminal court upon a currently undisposed felony complaint charging an offense which is a subject of the grand jury proceeding (see generally, People v. Smoke, 43 AD3d 1332 [4th Dept. 2007]). In such cases only, the district attorney must notify defendant or his attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his right to appear as a witness therein. There was no obligation in this case since Defendant filed no request to testify.

Additionally, Defendant presented no new evidence that impacts the conviction or shows that false evidence was used to convict him. Finally, the Court rejects Defendant's claim that the indictment was jurisdictionally defective based upon failure to list the penal law provisions. Review of the indictment shows the Grand Jury Report lists the penal law sections thereby giving adequate notice to Defendant and allowing him to cite the penal provisions in his pro se motion for new counsel (see, People's Affirmation, page 4). In further support of the indictment's correctness, the Court agrees with the prosecutor that no particular indictment form is constitutionally mandated except recitation of the crime's elements (see generally, People v. Iannone, supra.).

Ineffective Assistance of Counsel

Next, taking the above into account, the Court focuses upon alleged ineffective assistance of trial counsel. New York applies a "flexible standard" in evaluating such claims (see generally, People v. Yagudayev, 91 AD3d 888 [2nd Dept. 2012]). The standard requires that the evidence, the law, and the circumstances of the case be viewed in totality as of the time of the original representation. Therefore, a court can determine, by focusing upon the process' fairness as a whole, whether trial counsel provided effective representation (see generally, People v. Baldi, 54 NY2d 137 [1981]) (see also, People v. Hobot, 84 NY2d 1021 [1995]).

To be avoided is confusing "true ineffectiveness" with mere losing tactics (see generally, People v Baldi, supra). As long as representation is reasonable and presents a legitimate strategy under the circumstances, even if unsuccessful, the legal representation does not reach ineffective assistance levels. Instead, ineffective assistance can only be sustained where counsel acts in an "inexplicably prejudicial course" contrary to a defendant's constitutional interests (see generally, People v. Benevento, , supra. at 713, quoting People v. Zaborski, 59 NY2d 863 [1983]).

Because the Court finds, as discussed, that no legal basis exists for dismissing the petition for failure to list the penal provision in the text of the indictment, Defendant's claim that counsel's failure to move to dismiss the indictment rises to ineffective assistance of counsel levels is denied. Counsel was not required to make a motion under these circumstances.

Turning instead to the remaining branches of Defendant's motion, the Court must evaluate Defendant's position that certain statements used at trial against him were obtained under medical duress and, therefore, trial counsel is guilty of ineffective assistance when she failed to move for suppression of medically coerced statements.

To decide this aspect of the case, the Court requires a copy of the suppression decision to [*5]evaluate Defendant's claims that his counsel's conduct concerning moving for suppression of these statements constitutes ineffective assistance of counsel as concerns the allegedly medically coerced statements at the arrest scene and at Jacobi Hospital.

In this regard, Defendant is granted leave to submit a copy of the Court's (Gross, J.) suppression decision within 60 days of entry of this decision. The District Attorney is to cooperate with Defendant in obtaining the decision. The supplementation is needed in the interests of justice to afford the Court sufficient information to decide whether counsel raised the suppression issue as to allegedly medically coerced statements.[FN4] In addition, the Court requires that Defendant must show the statements were in fact received in evidence at the trial.

WHEREFORE, based upon the foregoing, it is

ORDERED that the branch of Defendant Rene Bonilla's motion, seeking to vacate the judgment of conviction upon grounds that the Court lacks jurisdiction over Defendant because the indictment was defective in form is DENIED, and it is

ORDERED that the branch of Defendant Rene Bonilla's motion, seeking to vacate the judgment of conviction upon grounds that trial counsel rendered ineffective assistance by failing to move to dismiss the indictment, is DENIED, and it is

ORDERED that the branch of Defendant Rene Bonilla's motion, seeking to vacate the judgment of conviction upon grounds that false material evidence was produced at trial, pursuant to CPL § 440.10 (c), is DENIED; and it is

ORDERED that the branch of Defendant Rene Bonilla's motion, seeking to vacate the judgment of conviction upon grounds that new evidence discovered since the judgment, pursuant to CPL § 440.10 (c), is DENIED, and it is further

ORDERED that the remaining branches of Defendant's motion, seeking to vacate the judgment of conviction upon grounds that the judgment violated Defendant's federal and/or state constitutional rights based upon ineffective assistance of counsel to move concerning the alleged medically coerced statements, is GRANTED to the extent that Defendant is to submit a copy of the Court (Gross, J.)'s April 26, 2007 decision, concerning statement suppression and submit evidence that the statements were received into evidence at trial, within 60 days of entry of this decision, or the parties are to report as to the status of obtaining such supplement to the record. At that time, the Court will decide Defendant's request for an evidentiary hearing in this case.

The foregoing constitutes the Decision and Order of this Court.

Dated: Bronx, New York

July 30, 2012

___________________________DOMINIC R. MASSARO, JSC

Footnotes

Footnote 1: Defendant says the jury found him guilty of Murder in the Second Degree (Penal Law §125.25), Attempted Murder in the Second Degree (Penal Law §110.00 and Penal Law §125.25) and Criminal Possession of a Weapon in the Second Degree ( Penal Law §265.03). The Appellate Division says Defendant was convicted of Murder in the Second Degree and Attempted Murder in the Second Degree (see, People v. Bonilla, supra.).

Footnote 2: Defendant says he made a prior ineffective assistance of counsel motion upon different grounds which was denied by the Court (Price, J.).

Footnote 3: Defendant neglected to submit a copy of the Court's decision.

Footnote 4: The Court recognizes that the prosecutor reported that he lacks a copy of the decision and lacks the hearing's transcript.