People v Garcia

[*1] People v Garcia 2013 NY Slip Op 52218(U) Decided on December 27, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 27, 2013
Supreme Court, Bronx County

The People of the State of New York

against

Rafael Garcia, Defendant.



1168-2007, 0494-2009



Defendant, Pro Se

Lindsey Ramistella

Assistant District Attorney

Office of the Bronx District Attorney

718-838-7667

Richard Lee Price, J.

On May 20, 2010, judgment was entered against the defendant in Supreme Court, Bronx County (Cirigliano, J.), convicting him after a jury trial (Indictment No. 1168-2007) of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]), a class D felony, operating a motor vehicle while under the influence of alcohol (VTL § 1192.2 [2] [0.08%]), a class E felony, and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), a class A misdemeanor. Defendant was sentenced to a term of three years imprisonment with a mandatory minimum period of one year on both felonies, and a definite term of one year imprisonment on the misdemeanor, each to be served concurrently with the other. No direct appeal was taken.

Subsequently, on May 20, 2010, judgment was entered against the defendant in Supreme Court, Bronx County (Cirigliano, J.), convicting him upon a plea of guilty (Indictment No. 494-2009) of operating a motor vehicle while under the influence of alcohol (VTL § 1192.2 [3]), a class E felony. Defendant was sentenced to a term of three years imprisonment with a mandatory minimum period of one year, to be served concurrently with the sentences imposed under Indictment No. 1168-2007. No direct appeal was taken. [*2]

By motion submitted May 24, 2013, defendant moves to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10 (1) (h), and in violation of Sixth Amendment of the United States Constitution and article I, §6 of the New York State Constitution. By decision and order dated September 30, 2013, this court denied defendant's motion. This expands that decision.

I. Background and Procedural History

Defendant, a native citizen of the Dominican Republic, entered the United States on September 18, 1985, and resided here as a lawful permanent resident.

Indictment No. 1168-2007

On March 2, 2007, Police Officer Paul Urquiaga stopped the defendant for operating a motor vehicle while under the influence of alcohol. At that time, the defendant exited his 1994 Ford Econoline, walked toward Officer Urquiaga, and wielded a gravity knife at him. Upon observing that the defendant's breath smelled of alcohol, and that his speech was slurred, Officer Urquiaga placed the defendant under arrest, pursuant to which he recovered a dollar bill containing a quantity of cocaine from the defendant's pocket. Defendant's blood alcohol content was .198 of one percentum by weight.

On March 3, 2007, the defendant was arraigned on charges of menacing a police officer, criminal possession of a weapon in the fourth degree, operating a motor vehicle while under the influence of alcohol, and criminal possession of a controlled substance in the seventh degree. He was represented by Anna Sim of The Legal Aid Society, and released after posting $2,000 bail.

On or about March 7, 2007, the People extended a pre-indictment plea offer that required him to plead guilty to VTL § 1192(2), a class E felony, and accept a five-year period of probation with an in-patient substance abuse program. The defendant, through Ms. Sim, communicated his desire for an out-patient program. The People then provided the defendant with an alternate offer: a class A misdemeanor and nine months imprisonment.

By indictment filed on March 23, 2007, the grand jury charged the defendant with menacing a police officer (PL § 120.18), criminal possession of a weapon in the third degree (PL § 265.02 [1]), operating a motor vehicle while under the influence of alcohol (VTL § 1192 [2] & [3], two counts each, all as felonies [FN1]); menacing in the second degree (PL § 120.14 [1]), criminal possession of a weapon in the fourth degree (PL § 265.01 [2]), criminal possession of a controlled substance in the seventh degree (PL § 220.03); operating a motor vehicle while under the influence of alcohol (VTL § 1192 [1]), and aggravated driving while intoxicated (VTL § 1192 [2-a]).

On or about May 27, 2008, the People conveyed its post-indictment plea offer to Ms. Sim: menacing a police officer (PL § 120.18; see also PL 70.02 [1] [c]), a class D violent felony, [*3]and two years imprisonment. This offer remained open and available until just prior to the commencement of jury selection on January 4, 2010.

Indictment No. 494-2009

On December 21, 2008, the defendant, while inside Antoinet Catzim's residence, punched her in the face and fled. Police Officer Jorge Mergeche stopped the defendant for operating a 1994 Ford Econoline while under the influence of alcohol. Officer Mergeche noticed that the defendant's breath smelled of alcohol. He also observed the defendant to have slurred speech, bloodshot and watery eyes, and be unsteady on his feet. He then discovered that the defendant's license had been suspended. The defendant refused to take a breath analysis test.

On December 21, 2008, the defendant was arraigned on charges of operating a motor vehicle while under the influence of alcohol, aggravated unlicensed operation of a motor vehicle, assault in the third degree, and endangering the welfare of a child. The court imposed $5,000 bail, which the defendant posted on December 29, 2008.

By indictment filed on January 14, 2009, the grand jury charged the defendant with operating a motor vehicle while under the influence of alcohol (VTL § 1192 [3]); assault in the third degree (PL § 120.00 [1]); aggravated unlicensed operation of a motor vehicle in the third degree (VTL § 511 [1] [a]); aggravated unlicensed operation of a motor vehicle in the second degree (VTL § 511 [2] [a] [iii]); and aggravated unlicensed operation of a motor vehicle in the first degree (VTL § 511 [a] [i]), all as felonies.

On or about January 21, 2009, the People conveyed its post-indictment plea offer to the defendant: operating a motor vehicle while under the influence of alcohol (VTL § 1192 [3]), a class E felony, and a term of three years imprisonment with a mandatory minimum period of one year, consecutive to the offer extended under Indictment 1168-2007. This offer also remained open and available until just prior to the commencement of jury selection on January 4, 2010.

Retention of Private Counsel

On or about May 22, 2009, the defendant privately retained Conway Martindale, Esq., to represent him on both indictments.

As noted above, on May 20, 2010, defendant was convicted after a jury trial on Indictment 1168-2007 of criminal possession of a weapon in the third degree, operating a motor vehicle while under the influence of alcohol, and criminal possession of a controlled substance in the third degree, and sentenced to two concurrent indeterminate terms of one to three years imprisonment and a concurrent definite term of one year imprisonment. The defendant then entered a guilty plea under Indictment 494-2009 to operating a motor vehicle while under the influence of alcohol or drugs, and was sentenced to an indeterminate term of one to three years imprisonment, to be served concurrently with the prior sentence. In exchange for this disposition, the People dismissed an unrelated criminal action against defendant under Docket 2009BX006668, charging him with aggravated unlicensed operation of a motor vehicle in the third degree.

Subsequently, the United States Department of Homeland Security, Immigration and Customs Enforcement (ICE), issued defendant a Notice to Appear (NTA) dated September 22, 2010, for removal proceedings. It alleged that the defendant was removable pursuant to [*4]Immigrations and Nationality Act (INA) § 237 (a) (2) (B) (i) on the basis of his May 22, 2010, conviction for criminal possession of a controlled substance in the seventh degree.

Defendant then filed a pro se petition with the Appellate Division, First Department, for a writ of error coram nobis claiming that trial counsel, Mr. Martindale, failed to file a timely notice of appeal on his behalf, and "erroneously advised [him] that his convictions after losing in trial would not render him eligible for deportation' " (see People's Exhibit 1: defendant's coram nobis application). On July 24, 2012, the Appellate Division denied defendant's application.

On April 9, 2012, during the pendency of his coram nobis application, defendant filed this motion to vacate his judgment of convictions pursuant to CPL § 440.10 (1) (h), claiming that the defendant received ineffective assistance of counsel from both Ms. Sim and Mr. Martindale. Regarding Ms. Sim, his "first lawyer who was [] appointed by the court," he alleges that she failed to inform the court of his desire to accept the initial pre-indictment 18-month drug program and the five year probation deal. Mr. Martindale, defendant asserts, erroneously advised him to reject a six-month plea offer that "led [him] to believe that [seventh-degree criminal possession of a controlled substance] was not a deportable offense."[FN2] Defendant also alleged that Mr. Martindale failed to file an appeal on his behalf.[FN3]

On April 1, 2013, Mr. Martindale, in a conversation with the assistant district attorney, stated that he discussed defendant's immigration status with him prior to proceeding to trial. Although Mr. Martindale could not recall the precise details of that discussion, he indicated that at the time of defendant's trial and plea in 2010, which was a few months after the Supreme Court decided Padilla v Kentucky (559 US 356 [2010]), he would never have affirmatively advised any non-citizen client that s/he would not be subject to removal for a conviction of criminal possession of a controlled substance seventh-degree (PL § 220.03). Mr. Martindale also indicated that at the time he began representing the defendant, the People had previously offered a plea deal to menacing of a police officer (PL § 120.18), a class D violent felony, which the defendant was aware constituted a deportable offense (see People's Affirmation in Opposition ¶21).

On April 8, 2013, the assistant district attorney spoke with Ms. Sim of the Legal Aid Society, who stated that she had no independent recollection of representing the defendant on either matter. Ms. Sim further stated that she received no communication from the defendant with regard to preparing this motion.

During April and May of 2013, the assistant district attorney had several conversations with Ms. Egan of ICE. Ms. Egan confirmed that defendant was ordered deported on October 4, 2012, on the basis of his conviction of criminal possession of a controlled substance in the [*5]seventh degree, and should have been returned to the Dominican Republic. Significantly, Ms. Egan indicated that ICE would not have sought defendant's deportation based upon a single conviction of VTL § 1192 (3). She noted, however, that had defendant been convicted only of the top charge, menacing a police officer or peace officer (PL § 120.18), and sentenced to a term of at least one year, ICE would nevertheless have initiated deportation proceedings against defendant on the ground that he committed an aggravated felony (in the form of "crime of violence . . . for which the term of imprisonment [is] at least one year") pursuant to INA § 237 (a) (2) (B) (i).

II. JurisdictionThe People claim that because the defendant was ordered deported and returned to the Dominican Republic, his motion should be dismissed as he is no longer within the control of this court. While the People acknowledge that an involuntarily removed defendant has an "absolute right to seek appellate review of their convictions" (People v Ventura, 17 NY3d 675, 679-80 [2011] [dismissal of an involuntarily removed defendant's appeal prior to hearing and disposition was improper]), they argue that no such right exists regarding the final determination on a motion to vacate (Murray v Giarratano, 492 US 1 [1989] ["[s]tate collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings and serve a different and more limited purpose than either the trial or appeal"]). The People are correct.

Until recently, a direct appeal was subject to dismissal if the defendant had been subsequently deported because he was no longer under the court's authority, or within its power (People v Diaz, 7 NY3d 831 [2006]; People v Genet, 59 NY 80 [1874]). But in 2011, the Court of Appeals held that a deported defendant is entitled to have his appeal considered (People v Ventura, 17 NY3d 675 [2011] [intermediary appellate courts erred when they dismissed appeals by defendants who were deported]. Ventura, though, was decided in large part because Criminal Procedure Law § 450.10 provides a defendant with an absolute right to seek some level of appellate review. Nothing in Ventura, however, granted a deported defendant the right to maintain a collateral attack of his conviction.

The rationale for such distinction is simple: direct appellate review would necessarily result in either an affirmance or dismissal of the conviction, but in any event would require no further subsequent action on the part of the defendant. Motions to vacate, conversely, require the defendant to comply with the decision of the reviewing court especially if granted since the case would be restored to its pre-pleading status (People v Reid, 34 Misc 3d 1234[A], 2012 NY Slip Op 50371 [U] [Sup Ct Queens County, March 6, 2012, Melendez, J]). At that point, the court would have neither the authority nor the ability to return the defendant for further judicial proceedings (Reid, 34 Misc 3d1234[A]).

III. Defendant's Burden to Allege Issues of Fact

Jurisdiction aside, defendant's motion must nevertheless be denied because he failed to allege sufficient issues of fact. A judgment of conviction is presumed valid, and a defendant moving to vacate his conviction bears the "burden of coming forward with sufficient allegations to create an issue of fact" (People v Session, 34 NY2d 254, 255-256 [1974]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]; see CPL § 440.30 [4] [b], [d] [i], [ii]). CPL § 440.30 (4) [*6]provides that a court may, upon considering the merits of such a 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]); an allegation of fact essential to support the motion is either contradicted by a court record or other official document; or, an allegation of fact made solely by the defendant is 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]).

The People maintain that defendant's claim should be denied because his moving papers do not contain sufficient allegations tending to substantiate them (see CPL 440.30 [4] [b], [d]). Indeed, the defendant neglected to provide an affidavit from either of his alleged ineffective attorneys. Statutorily, the People are correct. Failure to provide an affidavit from counsel warrants summary denial of defendant's motion because absent any other evidence that defense counsel failed to inform him of potential deportation consequences, he is unable to "substantiate all the essential facts" (see CPL § 440.30 [4] [b]; see People v Morales, 58 NY2d 1008 [1983], citing People v Scott, 10 NY2d 380 [1961] [failure to supply attorney's affirmation warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct]).

The absence of an attorney's affidavit, however, by itself, is not dispositive (see Morales, 58 NY2d 1008). In fact, an affidavit of counsel is not required where the defendant raises an ineffective assistance claim based on alleged error or omission of trial counsel (People v Radcliffe, 298 AD2d 533 [2nd Dept 2002]). "The defendant's application is adverse and hostile to his trial attorney. To require the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary" (Radcliffe at 534).

Here, the defendant neither provided an affidavit from Ms. Sim or Mr. Martindale, nor explained his efforts to obtain one from Ms. Sim. And, although he explained his efforts to obtain an affidavit from Mr. Martindale (see Defense Exhibit D), he stated that Mr. Martindale failed to supply it. Perhaps such failure is best understood by Mr. Martindale unequivocally stating to the assigned assistant district attorney that he would never have affirmatively told any non-citizen client that the client would not be subject to removal for a conviction of criminal possession of a controlled substance in the seventh degree. Mr. Martindale also indicated that at the time he represented the defendant, the District Attorney offered a plea to menacing of a police officer (PL § 120.18), a Class D violent felony, which the defendant was aware constituted a deportable offense.

Indeed, Ms. Sim and Mr. Martindale, both of whom maintain active criminal defense practices, are the only other persons from whom evidence substantiating defendant's claim can be adduced. As such, defendant's claim, without further evidence, is insufficient to meet his burden of proving that counsel's performance was ineffective. Accordingly, there being "no reasonable possibility that the allegation is true," defendant's motion must be summarily denied (CPL § 440.30 [4] [d] [ii]).

IV. Padilla's Retroactive EffectIn Padilla, the Supreme Court held that the Sixth Amendment requires defense attorneys to advise their clients of the immigration consequences arising from a guilty plea (Padilla, 559 US 356). Consequently, the Court concluded that failure to advise a defendant about deportation causes ineffective assistance of counsel, and is grounds for a court to vacate this judgment of [*7]conviction. The question then became whether this rule would apply retroactively to convictions that had become final prior the Padilla decision being announced.

Generally, the matter of retroactive effect is governed by the Supreme Court's ruling in Teague v Lane, 489 US 288 [1989]. There, the Court established that an application of a well-established constitutional doctrine to new facts constitutes an application of an "old rule" and must be applied retroactively (People v Eastman, 85 NY2d 265, 275 [1995]). When a court "breaks new ground or imposes a new constitutional obligation," however, it creates a "new rule" which, unless an exception to the rule, will not have retrospective effect (Eastman, 85 NY2d at 275; Teague, 489 US at 301, 310).

Brushing aside the distinction between direct and collateral consequences in defining the scope of the right to counsel, the Court in Padilla noted that while such a distinction may have relevance in other contexts, it has never been applied "to define the scope of constitutionally reasonable professional assistance' required under Strickland [citation omitted]" (Padilla at 365). Reasoning, however, that because the consequence of deportation is "unique" in that it is a "particularly severe" penalty "intimately related to the criminal process," the Court concluded a lawyer's advice (or non-advice) regarding such risk from pleading guilty is not exempt from Sixth Amendment scrutiny (Padilla at 365).

But when the Court left the question of retroactivity unaddressed, courts struggled with whether or not Padilla was to be given retroactive treatment. In 2012, the First Department concluded that "Padilla did not establish a new' rule under Teague[, but] rather [] followed from the clearly established principles" (People v Baret, 99 AD3d 408 [1st Dept 2012]). Padilla was therefore deemed retroactive, at least to 1996, when the Illegal Immigration Reform and Immigrant Responsibility Act was enacted (Baret, at 409).

Since then, however, the Supreme Court clarified that under the guidelines set out in Teague, their holding in Padilla indeed amounted to a new rule because "it answered a question about the Sixth Amendment's reach . . . in a way that altered the law of most jurisdictions . . . about collateral matters from the Sixth Amendment's ambit" (Chaidez v US, 133 S Ct 1103, 1110 [2013]). Prior to Padilla, the Supreme Court had declined to decide whether the Sixth Amendment applied to a lawyer's advice, or mis-advice, as to matters collateral to a criminal proceeding. Lower courts, therefore, had routinely refused to include advice concerning non-criminal consequences, including removal, from the Sixth Amendment. Padilla rejected such a categorical approach, thus precipitating a Strickland test analysis. Padilla therefore "breach[ed] the previously chink-free wall between direct and collateral consequences" (Chaidez at 1110). Because the Court's "holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment would not have been—in fact, was not— apparent to all reasonable jurists' prior to our decision" (citations omitted), Padilla broke ground and announced a new rule (Chaidez at 1111). As such, Padilla does not apply retroactively, and "defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding" (Chaidez, at 1113). The Baret reasoning, then, has been effectively overruled (People v Vatic, 39 Misc 3d 1236[A], *1, 2013 NY Slip Op 50909 [U] [Sup Ct Bronx County, May 31, 2013, Barrett, J]).

As for any suggestion that Padilla qualifies for retroactive application under Teague's watershed exception (Teague, 489 US 288), one lower court concluded that doing so would be entirely unwarranted (Vatic, 39 Misc 3d at 1236[A], *1). Acknowledging Padilla stated a new [*8]rule, the court stated that "failure to warn a defendant of the collateral immigration consequences of pleading guilty is neither a bedrock element of criminal procedure nor is it central to an accurate determination of a defendant's guilt or innocence" (Vatic at *1, citing Eastman, 85 NY2d at 275, Teague, 489 US at 311-12).

The question now is whether New York will apply broader retroactivity standards to Padilla-based claims than the Supreme Court. While states are certainly permitted to afford defendants broader retroactivity standards to a federal constitutional rule than federal courts, the Court of Appeals has yet to make such a determination in this regard (see Danforth v Minnesota, 552 US 264 [2008]). But in applying prevailing New York authority, at least two lower courts declined to do so (Vatic at *2; People v Marshall, 39 Misc 3d 1214[A], *1, 2013 NY Slip Op 50614 [U] [Sup Ct Bronx County, April 19, 2013, Livote, J]). Noting New York's continued reliance on a broader analysis of retroactivity (see Policano v Herbert, 7 NY3d 588, 603 [2006]), both courts analyzed the Padilla ruling under the standard articulated in People v Pepper (53 NY2d 213 [1981]).

In Pepper, the Court of Appeals held that aside from "a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence [will be] substituted for those in effect at the time of trial" (Pepper, 53 NY2d at 221). Observing that a defendant's guilt is separate from any resulting immigration consequences, the Marshall court held that "the determination of guilt is derived from the defendant's allocution . . . [and] the failure to advise a defendant of immigration consequences should not cast doubt on an otherwise proper plea allocution" (Marshall at *2; see also Vatic at *2). Thus, both Marshall and Vatic concluded that Padilla's imposition of such an affirmative duty on counsel does not amount to a current constitutional standard requiring retroactive treatment (Marshall, 39 Misc 3d 1214[A]; Vatic, 39 Misc 3d at 1236[A]). It appears, therefore, that regardless of whether analyzed under Teague or Pepper, there is no scenario entitling Padilla to retroactive effect in New York, at least until the Court of Appeals finds otherwise.

As noted, a rule's retroactive effect is relevant only to the extent of whether it applies to convictions that had become final prior to its announcement. Here, Padilla was decided on March 31, 2010. On May 20, 2010, defendant was sentenced on both convictions. Thirty days later, on June 19, 2010, both judgments of conviction became final. Thus, defendant's convictions became final nearly three months after Padilla was announced. As such, any discussion of Padilla's retroactive effect is of no consequence.

V. Ineffective Assistance of CounselAssuming it is otherwise proper for this court to consider defendant's motion, which based on jurisdictional and procedural grounds is in doubt, his ineffective assistance of counsel claim is nevertheless without merit. According to federal law, a claim of ineffective assistance of counsel is evaluated under the two-part test set forth in (Strickland v Washington, 466 US 668 [1984]). To prevail, a defendant must (1) show that his counsel's performance fell below an "objective standard of reasonableness" judged by "prevailing professional norms" (the performance prong), and (2) "affirmatively prove prejudice" by demonstrating that, but for counsel's unprofessional errors, the result of the proceeding would have been different (the prejudice prong) (Strickland, 466 US at 687-88, 693).[*9]

To establish that counsel's performance was deficient, a defendant must show that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance" (Pavel v Hollins, 261 F3d 210, 216 [2d Cir 2001]). This standard is "rigorous" (Lindstadt v Keane, 239 F3d 191, 199 [2d Cir 2001]), and "highly demanding" (Kimmel v Morrison, 477 US 365, 382 [1986]). To demonstrate prejudice, a defendant must show there is a "reasonable probability" that the ineffective performance rendered the proceeding fundamentally unfair or produced an unreliable result (Missouri v Frye, 132 S Ct 1399 [2012]; Lafler v Cooper, 132 S Ct 1376 [2012]; Premo v Moore, 131 S Ct 733 [2011]; Padilla, 559 US 356; Roe v Flores-Ortega, 528 US 470 [2000]; Lockhart v Fretwell, 506 US 364 [1993]; Hill v Lockhart, 474 US 52 [1985]; Strickland at 694-695).

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 NY2d 563, 565 [2000], quoting People v Baldi, 54 NY2d 137, 146-47 [1981]). According to this standard, counsel's acts or omissions must have been so egregious and prejudicial that it deprived him of a fair trial (People v Benevento, 91 NY2d 708, 713 [1998]; see also People v Hobot, 84 NY2d 1021, 1022 [1995]; People v Flores, 84 NY2d 184, 188-189 [1994]). Defendant need not, however, prove that the outcome of the case would have been different but for such errors. Rather, a defendant need only establish that he did not receive meaningful representation (Baldi, 54 NY2d 137; see Caban, 5 NY3d at 155-56). To be clear, meaningful representation does not mean preferred or perfect representation (Benevento, 91 NY2d at 712; People v Modica, 64 NY2d 828 [1985]; Baldi, 54 NY2d 137).

Regarding prejudice, where defendant's ineffective assistance claim is based "solely on federal constitutional law", New York courts rely on the Strickland standard (People v McDonald, 1 NY3d 109, 114 [2003]). In such circumstances, "[t]he 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" (McDonald at 115). Claims brought exclusively under the New York State Constitution, however, are evaluated under Baldi (54 NY2d 137). Initially, it may appear that the New York Baldi standard neglects the prejudice requirement of the federal Strickland standard. While it is true that New York law does not require a defendant to fully satisfy the prejudice test (People v Caban, 5 NY3d 143, 152 [2005]; People v Stultz, 2 NY3d 277, 284 [2004]), both require a defendant to establish that his attorney's performance "fell below an objective standard of reasonableness" (Rosario v Ercole, 601 F3d 118, 124 [2d Cir 2010]). New York simply examines " prejudice' . . . more generally in the context of whether defendant received meaningful representation" (Benevento, 91 NY2d at 713); the federal standard assesses the advice's effect on "the result of the proceedings" (Strickland, 466 US at 695).

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). Rather, New York is "ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" (Benevento, 91 NY2d at 714). Indeed, if there is an apparent contradiction, it is this: "[f]undamental fairness analysis by its nature must always encompass prejudice" such [*10]that under the New York standard the "prejudice" prong in Strickland is effectively redundant (Rosario, 601 F3d at 125). Regardless, the reality is that the former, by its nature, encompasses the latter (see Rosario at 118). Ultimately, "[t]he intellectually disciplined dispositional path of this case must not veer from this Court's long-standing, well-settled ineffective assistance of counsel analysis and authorities . . . when reviewing a claim of ineffective assistance of counsel, care should be taken to avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis' " (Flores, 84 NY2d at 186, quoting Baldi, 54 NY2d at 146).

Finally, 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.

A. Prejudice

1. Federal Standard

Defendant's motion is based on the assertion that defense counsel's failure to advise him of potential immigration consequences associated with proceeding to trial was per se ineffective assistance. As noted, however, to succeed the defendant must "affirmatively prove prejudice" by establishing a "reasonable probability" that, but for such allegedly deficient conduct, the result of the proceeding would have been different (Strickland, 466 US at 693; Lafler, 132 S Ct at 1384-1385).

I

In Padilla, the 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, 559 US 356). 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 forty years, pled guilty to drug-distribution charges in Kentucky and faced deportation as a consequence of his conviction. 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 359). 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 368-369). 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 [*11]must advise a defendant that his conviction makes him subject to mandatory deportation (Padilla at 368).

Mr. Martindale, therefore, had an affirmative duty to inform defendant of possible deportation as a consequence of being found guilty at trial. The Court's language makes clear that while the most common Padilla case is where the defendant entered a guilty plea, it intended its holding to encompass defense counsel's obligation to advise a defendant of the potential immigration consequences of any conviction, regardless of whether it is in the plea or trial context. If, as defendant claims, Mr. Martindale erroneously advised him to reject a six-month plea offer that "led [him] to believe that [seventh-degree criminal possession of a controlled substance] was not a deportable offense, Padilla would indeed govern (Padilla at 356; accord McDonald, 1 NY3d 109; see Lafler, 132 S Ct at 1384-1385).

IIAssuming the defendant established that Mr. Martindale misadvised him regarding his being subject to removal if convicted after trial, which he did not, defendant nevertheless fails to demonstrate a "reasonable probability" that he would have entered a guilty plea instead. Defendant rejected the People's pre-indictment offer of a five-year probationary period with an 18-month in-patient drug treatment program (see defendant's affidavit at ¶20). Yet, aside from his belated and unsubstantiated self-serving statements to the contrary, there is simply no support for his claim that he would have accepted it. He provided no minutes of the proceedings during which these plea discussions occurred, and neglected to supply an affidavit from Ms. Sim, his counsel at the time. And, the fact that defendant does not claim he sought to retrieve the pre-indictment offer after it had been withdrawn belies his current assertion that he would have accepted it.

Moreover, given the significant intervening circumstances, there is no indication that the People would have agreed to re-offer their pre-indictment plea bargain after having withdrawn it and securing an indictment. The People's post-indictment offer was a plea to menacing a police officer with two years imprisonment. Other than the obvious problem, that a non-incarceratory offer on Indictment 1168-2007 was no longer available, the People also presented defendant with a second plea offer to the additional charge of operating a motor vehicle while under the influence of alcohol with a term of three years imprisonment. This offer was to satisfy the charged crimes alleged to have been committed while having been released on bail (see attached Affirmation at ¶10), which were brought under Indictment 494-2009. And, both post-indictment offers also required that he serve the terms of imprisonment consecutively. It is highly unlikely, then, that under such circumstances the People would have returned to their pre-indictment, non-incarceratory offer (see e.g. Beck v Rudek, F3d, Docket No. 12-6235 2013 WL 163962, [10th Cir January 16, 2013] [under the Lafler prejudice analysis, "it was not reasonably probable' that the prosecution would have continued to extend its lenient offer or that the state court would have accepted it" where the defendant was re-arrested on new charges after the Government made its negotiated plea offer]).

Finally, defendant's suggestion that Mr. Martindale advised him to reject the plea offer because he could obtain a more beneficial arrangement than probation and an 18-month in-patient treatment program is absurd. Defendant retained Mr. Martindale in May 2009, at which [*12]time the only available offer was a plea to menacing a police or peace officer, a class D violent felony, with a sentence of two years imprisonment (under Indictment No. 1168-2007), and a plea to operating a motor vehicle while under the influence of alcohol, a class E felony, with a sentence of between one and three years imprisonment, to be served consecutively. Surely, then, such a claim is patently unbelievable.

2. New York Standard

As indicated, New York, unlike Strickland, relies on the "meaningful representation" standard (Henry, 95 NY3d 143; Baldi, 54 NY2d 137). Under this standard, a defendant must establish that given the totality of the circumstances counsel's conduct was so egregious it deprived him of a fair trial (Benevento, 91 NY2d 708, 713; see also Hobot, 84 NY2d 1021, 1022]; People v Flores, 84 NY2d 184, 188-189). A defendant need not, however, prove that the result would have been different but for counsel's allegedly deficient conduct (Baldi, 54 NY2d at 137; see Caban, 5 NY3d at 155-56).

Defendant would have this court believe the unlikely, arguably the unthinkable: that somehow, the People, after twice determining to offer no less than a plea to menacing a police officer (a class D violent felony and deportable offense) would suddenly and inexplicably alter it to a non-deportable offense. Such is folly, particularly considering the additional charges for which he was subsequently indicted. Any suggestion, therefore, that the People would have been miraculously willing to do so merely upon Mr. Martindale's retention as new counsel is entirely untenable.

Defendant's only assertion, then, that Mr. Martindale's deficiency was his failure to negotiate a plea arrangement that did not have removal consequences is simply baseless. Not surprisingly, his claim is not that Mr. Martindale never attempted to do so, but rather that he failed to obtain it. Moreover, defendant neglects to identify a reasonable plea to a non-deportable offense that Mr. Martindale might have pursued - and one that he would have accepted.

Equally implausible is that the People would have returned to their pre-indictment, non-incarceratory offer had Mr. Martindale pursued it. Considering that the People were seeking a combined period of imprisonment of between three and five years to satisfy two indictments, there are few scenarios under which the People would have agreed to restore their pre-indictment offer, particularly since it neither contemplated nor incorporated Indictment 494-2009. Indeed, there is no indication the People would have agreed to do so.

Finally, Mr. Martindale's alleged deportation misadvice aside, under the described circumstances there was but only one path to avert imprisonment and removal for the charge of menacing a police or peace officer: a trial, and an acquittal. Accepting the People's plea offer would have ensured defendant's removal. And, while it is true the defendant was eventually removed as a consequence of his conviction after trial, whether because of the weapon possession or multiple intoxicated driving convictions, it was certainly not because of menacing a police or peace officer; he was acquitted of that charge.

Accordingly, regardless of whether analyzed under the federal or state standards, defendant cannot establish that he was in any way prejudiced by Mr. Martindale's allegedly deficient conduct and misadvice.

[*13]B. Performance

Having failed to demonstrate any 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]). Nevertheless, it is worth noting that the sole support of defendant's claim is his self-serving statements two years post-conviction. And, as noted above, Mr. Martindale's statements clearly and specifically controvert his claim. Consequently, defendant fails to establish by a preponderance of the evidence that Mr. Martindale, or Ms. Sim for that matter, erroneously misadvised him as to possible immigration consequences upon conviction (see CPL 440.30[6]).

Moreover, the People correctly argue that defendant, in assessing the effectiveness of counsels, erroneously relies on Lafler, 132 S Ct at 1376. Lafler, however, was not decided on performance. Rather, the parties conceded "that counsel's advice with respect to the plea offer fell below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment" (Lafler at 1383). Consequently, the Supreme Court limited their analysis to whether such deficiency resulted in defendant rejecting a beneficial plea offer and convicted after trial. In any event, defendant's conviction became final two years before the Court decided Lafler. Whether or not it should be afforded retroactive treatment on collateral attacks has yet to be determined, but regardless, defendant does not present that issue. Either way, defendant's reliance on Lafler is otherwise entirely inapposite.

Notwithstanding defendant's complete failure to establish the ills he attributes to Mr. Martindale, this court concludes that he performed effectively. Had defendant accepted the People's plea offer to menacing of a police officer, he would have been subject to automatic removal for committing an aggravated felony (see 8 USC § 1101 [a] [43] [F] [aggravated felonies include "a crime of violence . . . for which the term of imprisonment [is] at least one year]; cf. Campbell v Attorney General of US, 174 FedAppx 89 [2006] [menacing in the second degree (PL § 120.14) is a crime of moral turpitude]) after serving two years imprisonment in addition to whatever additional imprisonment he would have received on Indictment 494-2009. It was, therefore, extraordinarily prudent, indeed highly beneficial, for defendant to proceed with trial in an attempt to obtain acquittals on the menacing and seventh degree criminal possession of a controlled substance charges, and remove the risk of deportation. The fact that Mr. Martindale succeeded, at least in part, by achieving an acquittal on the class D violent felony of menacing a police officer viewed in totality of the circumstances leads to the inescapable conclusion that Mr. Martindale provided competent, meaningful, and effective, counsel.

VI. Indictment No. 494-2009

Defendant claims that his "plea was not voluntarily entered because his counsel [Mr. Martindale] was ineffective at his plea and jury trial [since] counsel failed to inform the People that he wished to accept the plea offer of six months and five years' probation" (see Defendant's Affidavit ¶14). As noted above, however, despite defendant's conclusory assertion that his "plea was not voluntarily entered," it appears that the gravamen of his CPL 440.10 motion specifically relates to Indictment 1168-2007 (the indictment upon which he was convicted after trial), not [*14]Indictment 494-2009 (the indictment upon which he entered a plea of guilty).[FN4] Since the defendant does not specifically allege any infirmity to his guilty plea, this court need not entertain his motion with regard to Indictment 494-2009.

Nevertheless, this court notes that in a plea bargain context, counsel is deemed to have provided constitutionally effective representation when the defendant "receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404 [1995], overruled in part on other grounds by People v Peque, __ NY3d __, 2013 NY Slip Op 07651 [2013]; People v Boodhoo, 191 AD2d 448, 449 [2d Dept 1993]). And once a defendant acquires a favorable plea bargain, " it cannot be concluded that defendant was denied effective assistance of counsel' " (People v Black, 247 AD2d 238 [1st Dept 1998], quoting People v Garcia, 235 AD2d 268 [1st Dept 1997] ).

To establish that counsel's allegedly deficient conduct prejudiced him, " 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' " (Premo v Moore, 131 S Ct 733, 737 [2011], quoting Hill v Lockhart, 474 US 52, 59 [1985]; see Flores-Ortega, 528 US 470, 478; Strickland, 466 US at 694-695; People v Hernandez, __ NY3d __, 2013 NY Slip Op 07658 [2013]; McDonald, 1 NY3d 109). 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, 559 US at 372). And, since Padilla, the Supreme Court has reiterated the "reasonable probability" standard for establishing prejudice in ineffective assistance claims relative to the plea context (Frye, 132 S Ct at 1410; see also Lafler, 132 S Ct at 1384-1385 [beneficial plea offer rejected as a result of counsel's misadvice]).

Here, notwithstanding defendant's failure to specifically allege any infirmity with his guilty plea or counsel's performance, defendant would be unable to establish prejudice. It is not lost on this court that he entered the plea to operating a motor vehicle while under the influence of alcohol (a class E felony) after having been previously convicted by a jury of criminal possession of a weapon in the third degree (a class D felony), operating a motor vehicle while under the influence of alcohol (a class E felony), and criminal possession of a controlled substance in the seventh degree (a class A misdemeanor). Moreover, before doing so, he was aware of, and agreed to, receive three years imprisonment concurrent with the three years imposed upon his conviction under Indictment No. 1168-2007. Accordingly, any challenge to the conviction under Indictment No. 494-2009 must fail, procedurally and substantively.

VII. Conclusion

For the reasons stated above, this court finds that the defendant received effective assistance of counsel at all stages of the proceedings as guaranteed in the Sixth Amendment of the United States Constitution and article I, §6 of the New York State Constitution (Strickland, 466 US 668; Benevento, 91 NY2d 708; Baldi, 54 NY2d 137). Defendant's motion to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10 (1) (h) is therefore denied in all respects.

This constitutes the decision and order of the court. [*15]

Dated: December 27, 2013

E N T E R

________________________________Richard Lee Price, J.S.C. Footnotes

Footnote 1: As the People note, the "special information" attached to the indictment elevated these crimes from misdemeanor to felony charges. The basis of that elevation was defendant's judgment of conviction entered on January 16, 1999 upon his plea of guilty to VTL § 1192 (2) in Criminal Court, Bronx County (Docket No. 99X002956. He was sentenced to a term of three years probation and a $600 fine.

Footnote 2: Defendant claims that his "plea was not voluntarily entered because his counsel [Mr. Martindale] was ineffective at his plea and jury trial [since] counsel failed to inform the People that he wished to accept the plea offer of six months and a period of five years probation" (see Defendant's Affidavit ¶14). Despite the defendant's conclusory assertion that his "plea was not voluntarily entered," it appears that the gravamen of his CPL 440.10 motion specifically relates to Indictment 1168-2007 (the indictment upon which he was convicted after trial), not Indictment 494-2009 (the indictment upon which he entered a plea of guilty).

Footnote 3: This court notes that as to this claim, the Appellate Division heard and rejected it by denying his application for a writ of coram nobis.

Footnote 4: See n 3, p 7, supra.