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.

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. 2C:21-1A[3]) for having presented a forged Rhode Island driver's license to a police officer. On September 24, 2004, defendant was sentenced to a one-year term of probation and a $200 fine.

On March 25, 2010, the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), issued defendant a Notice to Appear ("NTA") for removal proceedings. The NTA alleges defendant is subject to removal from the United States pursuant to section 212 (a)(2)(i)(I) of the Immigration and Nationality Act ("INA") for having been convicted of a crime involving moral turpitude. On February 8, 2011, an Immigration Judge orally ordered the deportation of Mr. Bautista based on the above section of the INA.

By motion submitted on September 9, 2011, defendant moves this court to vacate his judgment of conviction pursuant to CPL 440.10(1)(h) on the basis of Padilla v Kentucky (130 S Ct 1473 [2010]), which imposed an affirmative duty on defense counsel to provide accurate advice concerning the potential immigration consequences to a non-citizen defendant. Defendant claims he received ineffective assistance of counsel because his attorneys, Peter Batalla, Frank Gould and Harvey Fishbein, misadvised him that a conviction after trial for attempted arson in the third degree, a Class D felony, would not result in deportation. He asserts that but for such alleged misadvice he would have certainly accepted the People's misdemeanor plea offer, which included a non-incarceratory sentence.

The People, in opposing defendant's motion, initially claim that Padilla is inapplicable because it was directed to counsel's advice concerning the immigration consequences of a guilty plea, not the advice provided in the context of whether or not to proceed with trial. They further argue that defendant failed to satisfy his burden of providing sworn allegations to sufficiently substantiate the claims set forth in his moving papers (see CPL 440.30[4][b], [d][i], [ii]), specifically his failure to present an affidavit from trial counsel. Such failure, they contend, demonstrates defendant's tacit concession that the only basis for this motion is his own self-serving statements. More significantly, the People note defendant's failure to present any evidence corroborating his claim that the generous misdemeanor plea to which he alludes was ever offered.

Substantively, the People claim that the immigration-related consequences defendant now faces are as much the result of his guilty plea in New Jersey for presenting a forged instrument, irrespective of the attempted arson conviction. Thus, the People contend that even if defendant were indeed oblivious to the possibility that his conviction at trial could subject him to removal proceedings, he suffered no prejudice as a result of counsel's alleged misadvice since he would nevertheless be facing deportation. Thus, according to the People, defendant has failed to establish that any of his attorneys caused an impediment to the "fairness of the process as a whole" (see People v Benevento, 91 NY2d 708, 714 [1998]).

As a threshold matter, this court is not persuaded by the People's contention that Padilla v Kentucky (130 S Ct 1473 [2010]) is inapplicable. The Supreme Court in Padilla imposed an affirmative duty on defense counsel to provide accurate advice concerning the potential immigration consequences to a non-citizen defendant (Padilla, 130 S Ct at 1473). Padilla, a lawful permanent resident in the United States for over 40 years, pled guilty to drug-distribution [*3]charges in Kentucky. Prior to entering the plea, counsel assured Padilla that doing so would not affect his immigration status because "he had been in the country so long" (Padilla at 1478). Facing deportation as a consequence of his conviction, Padilla claimed ineffective assistance of counsel. The Court concluded that it was "not a hard case in which to find deficiency" for counsel could have easily "determined that the plea would make [Padilla] eligible for deportation simply from reading the text of the statute" (Padilla at 1478).

To be sure, Padilla provides guidance as to the scope and nature of legal advice that courts should require of practitioners in the immigration context. At least where the "terms of the relevant immigration statute are succinct . . . 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). Such language makes clear that while the most common Padilla case is where the defendant entered a guilty plea, the Court intended its holding to encompass defense counsel's obligation to advise a defendant of the potential immigration consequences of any conviction, whether or not it is regarding a plea or trial. If the defendant was truly misadvised as to the immigration consequences of a conviction, as he contends, and consequently refused a plea that would have shielded him from deportation, Padilla would indeed govern.

Pursuant CPL 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, defendant neither provided an affidavit from his attorney nor explained his efforts to obtain one (see CPL 440.30[4][b]; see also 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]). Perhaps such failure is explained by the inclusion of statements in the People's opposition papers from two of defendant's three attorneys denying the defendant's allegations.^[FN1] Defendant's first attorney, Peter Batalla, stated that although he has no specific recollection of defendant's case, he "is very aware of deportation law" and would have had an open discussion with him about the immigration consequences.

Moreover, regarding the existence of a plea offer, neither Mr. Batalla nor subsequent counsel Harvey Fishbein recall the People extending any plea offer. In fact, Mr. Fishebin stated that in his experience, no post-indictment plea deals are offered in Bronx County. He further stated that had an offer been extended, he would have consulted an immigration attorney in order [*4]to properly advise the defendant of any potential immigration consequences, and would certainly not have made any affirmative representation to defendant inducing him to proceed with trial. This court notes that both Mr. Batalla, who has over twenty years experience defending non-citizens, and Mr. Fishbein maintain active criminal defense practices. As defendant's counsels, they are the only individuals from whom evidence substantiating defendant's claim can be adduced. 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]).

Assuming defendant satisfied his burden of asserting sufficient factual allegations, which he did not, 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).

To demonstrate 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 (Lockhart v Fretwell, 506 US 364, 370-72 [1993]).

According to New York law, however, the 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" (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.

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

________________________________Richard Lee Price, J.S.C.