The following named papers numbered 1 to 4

submitted on this Motion

on March 10, 2004

papers numbered

Order to Show Cause and Affidavits Annexed

Answering Affidavits 3

Reply Affidavits 4

This is a motion to vacate the judgment of conviction pursuant to CPL §440.10(h) on the grounds that defendant's conviction and sentence were entered and imposed in violation of his rights under the state and federal constitutions.

CPL §440.10 sets forth the grounds upon which a defendant may seek to vacate a judgment. The first ground the defendant moves under is CPL §440.10(h) in that the judgment was obtained in violation of the defendant's rights under the Constitution of the United States and the Constitution of the State of New York in that defendant is innocent of the charge of the violation of PL §220.03 (Possession of a Controlled Substance in the 7th Degree, a class "A" misdemeanor) and further that the Court and defendant's counsel failed to inform the defendant that his plea could be a basis for deportation. In addition, defendant's attorney claims that the plea should be vacated in the interest of justice.

The defendant, Victor H. Mosquera, was born in Ecuador and immigrated to this country with his parents in 1982 at the age of thirteen. He is now 34-years old and a legal permanent resident of the United States. His mother, brother and sister all reside in this country.

Mosquera, however, has not been an American success story. He has been arrested a total of nine times, including five violations, 2 misdemeanors and 2 felonies. He also was arrested as a minor for 2 felonies and in each instance was adjudicated a youthful offender (YO).

His first arrest came in 1985 for Attempted Burglary in the Second Degree, a violation of PL §§110/140.25, a class "D" felony. He was adjudicated a YO and sentenced to 30 days and 5 years probation

He was subsequently arrested in 1986 and charged with Criminal Mischief in the 3rd Degree in violation of PL §140.65, a class "E" felony, again adjudicated a YO and pled to a violation of PL §§110/140.05, Attempted Criminal Mischief.

On September 8, 1988 he was charged with Criminal Possession of a Controlled Substance in the 2nd Degree and 3rd Degree in violation of PL §220.10, a class "A" felony and PL §220.10(1), a class "B" felony. He pled guilty to a violation of PL §220.10(1), a class "C" felony. He was sentenced to one to three years. This is the predicate for the "Drug Trafficking" finding.

He was arrested on the instant offense on July 10, 1999. He was charged with possession of crack cocaine, a violation of PL §220.03, possession of a controlled substance in the seventh degree, a class "A" misdemeanor. After a suppression hearing in which several crucial elements of the People's case were cast into doubt, the charge was reduced to an attempted possession of a controlled substance in the seventh degree, a "B" misdemeanor. He pled guilty and was fined $500. It is this conviction and plea which is the subject of this motion.

The Department of Immigration and Naturalization is now seeking to deport him. In an INS proceeding held February 6, 2004, the defendant, who is being detained by the Department of Homeland Security, was ordered deported to Ecuador. A U.S. Immigration Judge found that under the immigration law the "B" misdemeanor was determined to be an "aggravated felony drug trafficking crime." At the time of his plea, there was no way to know that the conviction would cause him to forfeit his status as a legal permanent resident of this country and after deportation, prohibit him from ever returning to this country.

The legal basis for the INS finding is U.S. v. Simpson, 319 F.3d 81 (2nd Circuit, Jan. 2002), which held as follows:

"... a drug trafficking offense is an 'aggravated felony' when it is: (1) an offense punishable under the CSA, (Controlled Substances Act) and (2) can be classified as a felony under either state or federal law (see, United States v. Pornes- Garcia, 171 F.3d 142, 145 [2d Cir1999]; United States v. Polanco, 29 F.3d 35, 38 [2d Cir1994]). Simpson's convictions were all for misdemeanors under New York law (NY Penal Law §§221.10, 221.15, 221.40 [McKinney 2000]). However, the crimes for which Simpson was charged under New York law were also punishable under federal law. [*2]For example, under the CSA the sale of marijuana is a felony offense that carries a maximum term of five years' imprisonment (or ten years' imprisonment for a second offense) (see, 21 U.S.C. §841[b][1][D]); see also, 18 U.S.C. §3559[a]) (specifying that any offense punishable by more than one year of imprisonment is a felony)."

The defendant's argument for vacating the plea is the following:

1. The retroactive application of the holding in the Simpson case, supra.

2. The unconstitutionally seized evidence leading to his arrest and the actual innocense of the defendant.

3. The inadequate allocution at the time of his plea in that it was not "knowing, intelligent and voluntary".

4. Failure to advise defendant of potential immigration consequences; and

5. In the interests of justice, the denial of "fundamental fairness" requiring the writ of error Coram Nobis Audeta Querela was designed to rectify. Defendant contends that a misdemeanor drug possession conviction in a state court cannot be considered a "drug trafficking crime" when it was never alleged that the defendant's actions involved a sale, possession with intent to sell, or any element related to "trafficking."

However, the only record submitted from the immigration proceeding is a "summary of the oral decision" (Ex. "D"). It is clear that the decision was based on both the 1999 conviction and the 1989 conviction of PL §220.16(1), criminal possession of a controlled substance in the third degree, a felony.

The defendant alleges that his plea was unknowing and involuntary because the court and defense counsel failed to advise him that his guilty plea could subject him to deportation. Further, the defendant contends that counsel's failure to do so constituted ineffective assistance of counsel. He also argues that the court (J. Peck) failed to conduct a proper plea allocution.

The transcript of the 1999 misdemeanor plea indicates that the People's offer to reduce the charge was conditioned on defendant's waiving his right to appeal. However, there is no indication in the minutes of the plea proceeding that the defendant actually waived his right to appeal. In any event, a defendant always retains the right to challenge the voluntariness of his plea.

The Court of Appeals in People v. Seaberg stated:

"We conclude that the public interest concerns underlying plea bargains generally are served by enforcing waivers of the right to appeal. Indeed, such waivers advance that interest, for the State's legitimate interest in finality extends to the sentence itself and [*3]to holding defendants to bargains they have made. While a defendant always retains the right to challenge the legality of the sentence or the voluntariness of the plea (see, People v. Francabandera, 33 NY2d 434, n 2, supra), the negotiating process serves little purpose if the terms of "a carefully orchestrated bargain" can subsequently be challenged (see, People v. Prescott, 66 NY2d 216, 220, supra). Moreover, the People need not particularize 'some legitimate State interest' to justify conditioning a plea bargain on defendant's waiver of the right to appeal (see, People v. Ventura, 139 AD2d 196, 203). The validity of the waiver is supported by the interests supporting plea bargains generally. Accordingly, we find no public policy precluding defendants from waiving their rights to appeal as a condition of the plea and sentence bargains ...".

Thus, while a waiver of appeal is an enforceable condition of a plea bargain, the defendant always retains the right to challenge the legality or the voluntariness of the plea. The defendant did not appeal from the judgment of conviction and therefore, under CPL §440.10(2)c, the Court is mandated to summarily deny defendant's record-based claim that his guilty plea was unknowing and involuntary. A motion to vacate is not a substitute for direct appeal (People v. Cooks, 67 NY2d 100).

The issue of failure to advise the defendant of the possibility of deportation has long been held is "not one within the control of the court system" (People v. Ford, 86 NY2d 397). Deportation is a collateral consequence of conviction because it is a result peculiar to the individual's personal circumstances and one not within the control of the court system. Therefore, our Appellate Division and the Federal courts have consistently held that the trial court need not, before accepting a plea of guilty, advise a defendant of the possibility of deportation (see, People v. Boodhoo, 191 AD2d 448; People v. Williams, 189 AD2d 910, lv denied 81 NY2d 978; Fruchtman v. Kenton, supra; Cuthrell v. Director, Patuxent Inst., supra; United States v. Parrino, 212 F2d 919, 921, cert denied 348 US 840).

Illustrations of collateral consequences are loss of the right to vote or travel abroad (Meaton v. United States, 328 F2d 379), loss of civil service employment (United States v. Crowley, 529 F2d 1066, cert denied 425 US 995), loss of a driver's license (Moore v. Hinton, 513 F2d 781), loss of the right to possess firearms (Penal Law §400.00 [1] [b]) or an undesirable discharge from the Armed Services (Redwine v. Zuckert, 317 F2d 336). The failure to warn of such collateral consequences will not warrant vacating a plea because they are peculiar to the individual and generally result from the actions taken by agencies the court does not control (see, United States v. Sambro, 454 F2d 918, 922; Sanchez v. United States, 572 F2d 210, 211).

As for any alleged inadequacies in the plea allocution, the Ford case, supra, held:

"The court is not required to engage in any particular litany when allocuting the defendant, but due process requires that the record must be clear that "the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant" (North Carolina v. Alford, 400 US 25, 31, citing Boykin v. [*4]Alabama, 395 US 238, supra; see also, People v. Moissett, 76 NY2d 909, 910-911). Manifestly, a criminal court is in no position to advise on all the ramifications of a guilty plea personal to a defendant."

The record clearly shows that the plea was a "voluntary and intelligent choice among the alternative courses of action open to the defendant."

The grounds to vacate a plea are enumerated in CPL §410.10 as follows:

At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: 1.

(a) The court did not have jurisdiction of the action or of the person of the defendant; or (b) The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor; or (c) Material evidence adduced at a trial resulting in the judgment was false and was, prior to the entry of the judgment, known by the prosecutor or by the court to be false; or (d) Material evidence adduced by the people at a trial resulting in the judgment was procured in violation of the defendant's rights under the constitution of this state or of the United States; or

(e) During the proceedings resulting in the judgment, the defendant, by reason of mental disease or defect, was incapable of understanding or participating in such proceedings; or

(f) Improper 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; or

(g) New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence; or

(h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.

The issue raised here of the defendant's "possible" actual innocence of the crime alleged is not listed among the grounds to vacate under CPL §410.10. The decision whether to permit the withdrawal of a plea of guilty rests within the sound discretion of the trial court (see, CPL §220.60[3]; People v. Bonds, 254 AD2d 430). The trial court can exercise its discretion in denying a defendant's motion to withdraw his plea without holding a hearing. (People v. Marzocco, 278 AD2d 515, see also this court decision in People v. Mandeep-Kaur Sidhu, 2001 N.Y. Slip Op. 50140(U)). The defendant's claim of innocence is unsubstantiated and refuted by his earlier admission of guilt (see, People v. Quijada-Lopez, 256 AD2d 478; People v. Bonds, supra).

The defendant's contention that the plea should be vacated "in the interest of justice" is also rejected. In this regard, the holding in People v. Agero, 24 AD2d 94 controls:

"Defendant is not entitled to a writ of coram nobis audita querela 'to obtain relief against a judgment or execution because of some defense or discharge arising subsequent to the rendition of the judgment' (United States v. Johnson, 962 F2d 579, 582), due to a subsequent change in Federal law that effectively barred her from seeking a waiver of deportability. Since deportation is a collateral consequence of defendant's criminal conviction and not within the control of the court system (People v. Ford, 86 NY2d 397, 403), defendant has not been deprived of due process of law. Nor is there any authority in New York to grant such relief on equitable grounds (CPL §440.10). In any event, we would find no basis upon which to disturb this conviction."

A review of this record and these submissions presents sufficient facts for the Court to make an informed decision on the merits without a hearing.

The defendant's motion is denied in all respects.

This constitutes the order and decision of this Court.

So ordered:

DISTRICT COURT JUDGE

Dated:

CC:George A. Terezakis, Esq.

District Attorney, Nassau County [*6]

EAM/mp

Decision Date: March 31, 2004