Pursuant to CPL §440.10, Defendant Rene Bonilla, pro se, moves to vacate the judgment of conviction against him, which he maintains was entered by the Court on May 11, 2007, finding him guilty after a jury trial 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 (see, Penal Law §265.03). The Court's records show the judgment was actually rendered on June 14, 2007, and amended on October 29, 2007, and the Court sentenced him to consecutive prison terms of (1) 25 years to life and (2) 25 years, respectively (see, People v. Bonilla, 57 AD3d 400 [1st Dept. 2008]). In addition to other relief requested, Defendant seeks an evidentiary hearing.

In an earlier July 30, 2012, decision, the Court denied those branches of Defendant's motion seeking to vacate the judgment of conviction upon grounds that (1) the Court lacked jurisdiction over Defendant because the indictment was defective in form, (2) trial counsel rendered ineffective assistance by failing to move to dismiss the indictment, (3) false material evidence was produced at trial, and (4) new evidence discovered since the judgment requires that the judgment of conviction be reversed (CPL § 440.10[c]).

On the other hand, the Court granted those branches of Defendant's motion seeking to vacate the judgment of conviction because that judgment violated Defendant's federal and/or state constitutional rights respecting ineffective assistance of counsel as to allegedly medically coerced statements given by Defendant. In the July 30, 2012, opinion, the Court granted relief to the extent that Defendant was directed to submit a copy of the Court (Gross, J.)'s April 26, 2007, decision concerning statement suppression and to submit evidence that the statements were in fact received into evidence at trial. The Court directed that Defendant provide additional evidentiary development within sixty days of entry of [*2]the decision, that is, by September 30, 2012. Also, the parties were to report the status of record supplementation by said date. When the additional development was to be received, the Court was to decide Defendant's request for an evidentiary hearing.

In response to the Court's direction, Defendant submitted a copy of the April 26, 2007, hearing minutes (pages 1 to 86). The hearing minutes were received on October 5, 2012, with a cover letter indicating that the transcript was forwarded to the District Attorney's office. The Court's original April 26, 2007, trial opinion, denying suppression of medically compelled statements, was orally delivered by Judge Gross and contained in the hearing minutes (Tr. pp. 73 to 86). However, Defendant submitted no evidence that the alleged coerced statements were received at trial; the prosecutor made no submission.

Legal Discussion

Critical to the Court's deciding the issue of ineffective assistance of counsel is that trial counsel moved for a Huntley hearing pretrial in 2007 upon the issue of whether statements, including an affidavit taken at the arrest scene, should be suppressed at trial.^[FN1] At that time, Judge Gross ordered a hearing which was conducted on April 26, 2007. At the hearing, the Court denied Defendant's suppression motion.

Defendant now moves to reverse the judgment of conviction by alleging his counsel was guilty of ineffective assistance by not appealing the Court's 2007 ruling. The motion before the Court is not an appeal of the Court's original suppression ruling, but instead is a separate motion that defense counsel was ineffective because she did not appeal that original ruling. After reviewing the original submission, this Court permitted leave to further enhance the record. In response, Defendant submitted a copy of the hearing transcript received by the Court on October 5, 2012.

Following the July 30, 2012 opinion, the issue yet remains whether Defendant's counsel's failure to appeal the 2007 decision, that certain statements, allegedly obtained under medical duress and used at trial, were not suppressible, denied Defendant's constitutionally protected right to effective assistance of counsel.

As stated, the Court advised the parties that a copy of Judge Gross' suppression decision was needed to evaluate the claim that counsel's conduct, regarding the Court's suppression ruling, constitutes a violation of Defendant's constitutional right to effective assistance of counsel. Based upon the enhanced record, the Court finds that Defendant failed his burden to show that trial counsel committed constitutionally ineffective assistance of counsel.

Most significantly, Defendant failed to show as a factual matter that the statements were received at trial. Besides the hearing transcript, Defendant presented no evidence that impacts whether trial counsel was guilty of ineffective assistance when no appeal was taken of the 2007 ruling. Under these circumstances, because a judgment of conviction is presumed valid, Defendant retains the burden of coming forward with allegations supporting vacating the judgment (see, People v. Session, 34 NY2d 254 [1974]). The Court finds that Defendant failed to take full advantage of the record supplementation granted by the Court on July 30, 2012, and failed to convince the [*3]Court that (1) counsel acted other than properly concerning the alleged medically coerced statements or (2) the statements were, in fact, received into evidence at trial. Further, in light of Defendants's failure to properly enhance the record, no purpose would be served by holding an evidentiary hearing in this matter.

WHEREFORE, based upon the foregoing, it is

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 to effective assistance of counsel because of counsel's failure to move concerning the allegedly medically coerced statements, are DENIED; and it is further

ORDERED that there is no basis for an evidentiary hearing in this matter.

The foregoing constitutes the Decision and Order of this Court.

Dated: Bronx, New York

December 5, 2012

___________________________DOMINIC R. MASSARO, JSC

At that time, Judge Gross ordered a hearing which was conducted on April 26, 2007. At the hearing, the Court denied Defendant's suppression motion.

Defendant now moves to reverse the judgment of conviction by alleging his counsel was guilty of ineffective assistance by not appealing the Court's 2007 ruling. The motion before the Court is not an appeal of the Court's original suppression ruling, but instead is a separate motion that defense counsel was ineffective because she did not appeal that original ruling. After reviewing the original submission, this Court permitted leave to further enhance the record. In response, Defendant submitted a copy of the hearing transcript received by the Court on October 5, 2012.

Following the July 30, 2012 opinion, the issue yet remains whether Defendant's counsel's failure to appeal the 2007 decision, that certain statements, allegedly obtained under medical duress and used at trial, were not suppressible, denied Defendant's constitutionally protected right to effective assistance of counsel.

As stated, the Court advised the parties that a copy of Judge Gross' suppression decision was needed to evaluate the claim that counsel's conduct, regarding the Court's suppression ruling, constitutes a violation of Defendant's constitutional right to effective assistance of counsel. Based upon the enhanced record, the Court finds that Defendant failed his burden to show that trial counsel committed constitutionally ineffective assistance of counsel.

Most significantly, Defendant failed to show as a factual matter that the statements were received at trial. Besides the hearing transcript, Defendant presented no evidence that impacts whether trial counsel was guilty of ineffective assistance when no appeal was taken of the 2007 ruling. Under these circumstances, because a judgment of conviction is presumed valid, Defendant retains the burden of coming forward with allegations supporting vacating the judgment (see, People v. Session, 34 NY2d 254 [1974]). The Court finds that Defendant failed to take full advantage of the record supplementation granted by the Court on July 30, 2012, and failed to convince the [*4]Court that (1) counsel acted other than properly concerning the alleged medically coerced statements or (2) the statements were, in fact, received into evidence at trial. Further, in light of Defendants's failure to properly enhance the record, no purpose would be served by holding an evidentiary hearing in this matter.

WHEREFORE, based upon the foregoing, it is

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 to effective assistance of counsel because of counsel's failure to move concerning the allegedly medically coerced statements, are DENIED; and it is further

ORDERED that there is no basis for an evidentiary hearing in this matter.

The foregoing constitutes the Decision and Order of this Court.

Dated: Bronx, New York

December 5, 2012

___________________________DOMINIC R. MASSARO, JSC