People v Bautista
Annotate this CaseDecided on October 12, 2011
Supreme Court, Bronx County
The People of the State of New York, Plaintiff,
against
Robert Bautista, Defendant.
2450-2002
Stephen Preziosi, Esq.
Counsel for the Defendant
Justin Braun
Assistant District Attorney
Office of the Bronx District Attorney
Richard L. Price, J.
On June 5, 2003, judgment was entered against the defendant in Supreme Court, Bronx County (Cohen, J.), convicting him upon a non-jury trial of attempted arson in the third-degree (PL 110/150.10). On December 3, 2003, defendant was sentenced to a five-year term of probation. Defendant now moves this court to vacate his felony conviction pursuant to CPL 440.10(1)(h) on the basis that trial counsel failed to provide effective representation by misadvising him of the immigration consequences of being convicted after trial. Specifically, he contends that precisely because of such alleged misadvice, he rejected a generous plea offer to a misdemeanor charge—a decision he now claims that he would not have made had trial counsel's advice been accurate. Defendant argues, therefore, that his decision was not knowing and voluntary, and that his conviction should accordingly be vacated. In the alternative, defendant requests a hearing to determine whether said judgment should be vacated. For the reasons stated below, defendant's motion is denied.
Background and Procedural HistoryDefendant has been a legal permanent resident of the United States since 1984.
On May 28, 2002, the People filed an indictment against the defendant charging him with attempted arson in the third degree (PL 110/150.10, a class D felony). As noted, defendant was ultimately convicted after a non-jury trial of that charge and sentenced to five years probation. [*2]
On June 14, 2004, the defendant entered a plea of guilty in New Jersey Superior Court to the charge of uttering a forged instrument (N.J.S.A. 2" target="_blank">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" (People v Benevento, 91 NY2d 708, 713 [1998]). Indeed, 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). However, like the performance prong in Strickland, 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]).
Initially, it may appear as if the New York standard neglects a requirement of the federal standard. But rather, the former by its nature encompasses the latter (see Rosario, 601 F3d 118). Benevento explained that in New York, " prejudice' is examined more generally in the context of [*5]whether defendant received meaningful representation" (Benevento, 91 NY2d at 713). Consistent with this notion, it is irrelevant whether the attorney's advice had a particular impact on the outcome of the case (see Caban, 5 NY3d at 156). The federal standard, however, accounts for the advice's effect on "the result of the proceedings" (Strickland, 466 US at 695). Thus, this is only an apparent contradiction: "[f]undamental fairness analysis by its nature must always encompass prejudice" such that under the New York standard the "prejudice" prong in Strickland is effectively redundant (Rosario, 601 F3d at 125).
It is worth noting that 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, 466 US 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 (id).
i. Prejudice
Defendant has failed to establish that the immigration-related consequences he faces are entirely the result of the 2003 attempted arson conviction. Defendant, by his own admission, cannot recall the details of the misdemeanor plea offer he alleges the People extended. Assuming it was indeed made, without such specificity this court is constrained to determine that it would have spared him from removal proceedings. In fact, given the class D felony with which defendant was charged, it is unlikely that any realistic plea offer would have placed him outside the scope of INA section 212 (a)(2)(i)(I) (deportation for conviction of a crime of moral turpitude).
This court also finds it particularly incredible that the defendant would have opted for a trial if the People had offered him a misdemeanor plea with a non-incarceratory sentence. By doing so, he would have exposed himself to a minimum term of two years imprisonment and a maximum term of seven years. Defendant's eventual probationary sentence notwithstanding, it is unlikely that had such an offer been extended, he would have elected to proceed with a trial. Defendant's claim, therefore, lacks credibility.
Moreover, as the People correctly point out, the defendant would be subject to deportation regardless of the 2003 attempted arson conviction because of his 2001 New Jersey conviction. Thus, even if he was indeed ignorant that a conviction after trial could run him afoul of federal immigration authorities, there can be no prejudice as a result of counsel's alleged misadvice since he would nevertheless be facing deportation.
ii. Performance
Having failed to demonstrate prejudice, it is unnecessary for this court to determine whether or not counsel's performance fell below an "objective standard of reasonableness" (Strickland, 466 US at 687-88; see Benevento, 91 NY2d 708 [1998]). Counsel will be deemed to have provided constitutionally effective representation when nothing in the record casts doubt on the apparent effectiveness of counsel (see People v Ford, 86 NY2d 397, 405 [1995]). Here, the defendant's self-serving statements eight years post-conviction are the only proof offered to in support of his claim. And, as noted above, both Mr. Batalla's and Mr. Fishbein's statements controvert defendant's claim. Consequently, defendant fails to establish by a preponderance of [*6]the evidence that any of his lawyers misadvised him as to possible immigration consequences of a conviction (see CPL 440.30[6]). In the absence of any other evidence to substantiate it, defendant fails to sustain his burden of establishing that counsel's performance was ineffective.
iii. Retroactivity
Defendant also contends that Padilla must retroactively apply. Although a debate persists as to whether or not it should be (see e.g. People v Obonaga, No., 07-CR-402 (JS), 2010 WL 2629748 (EDNY) (retroactive effect); Gacko v United States, No. 09-CV-4938 (ARR), 2010 WL 2076020 (EDNY 2010) (no retroactive effect), this court, having determined that defendant failed to establish counsel was ineffective, will neither consider nor address such issue.
Conclusion
For the reasons stated above, this court finds that the defendant received effective assistance at all stages of the proceedings (see 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:October 12, 2011
E N T E R
________________________________Richard Lee Price, J.S.C.
Footnotes
Footnote 1: Defendant's other attorney, Frank Gould, suffers from dementia and was therefore unavailable for consultation.
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