People v. Gonzalez
| Decision Date | 29 June 2012 |
| Docket Number | No. 3258–1996.,3258–1996. |
| Citation | 957 N.Y.S.2d 265,36 Misc.3d 1210,2012 N.Y. Slip Op. 51246 |
| Parties | The PEOPLE of the State of New York v. Raphael GONZALEZ, Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Goldstein & Weinstein, Esq., Counsel for Defendant.
Justin Braun, Assistant District Attorney, Office of the Bronx District Attorney.
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.
On 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 § 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.
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 N.Y.2d 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 U.S. 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 People v. Harris, 109 A.D.2d 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.
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...
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