On August 18, 2000, under Docket Number 2000KN067225, Defendant was charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), a Class A misdemeanor. On September 13, 2000, Defendant entered a plea of guilty to the sole count of the Criminal Court Complaint, and received a sentence of a Conditional Discharge. One of the conditions of the Defendant's discharge was that he attend the Treatment Readiness Program. A surcharge in the amount of $160.00 was also imposed.

The Court file for Docket Number 2000KN067225 provides no evidence to indicate that the Defendant failed to complete the assigned program, and on October 16, 2000, the surcharge was paid in full.

On December 31, 2005, under Docket No. 2006KN000047, this Defendant was again charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), a Class A misdemeanor. On January 1, 2006, Defendant entered a plea of guilty to this charge, and again received a sentence of a Conditional Discharge. One of the conditions of the Defendant's discharge in this matter was that he perform 10 days of community service. A surcharge in the amount of $160.00 was again imposed.

Defendant was scheduled to appear in AP 5 of the Kings County Criminal Court on March 3, 2006 to show proof that he had completed his community service, and pay the surcharge under Docket Number 2006KN000047. On March 3, 2006, the Defendant failed to appear as instructed, and a warrant was issued for his arrest.

On April 11, 2006, the Court was presented with a Declaration of Delinquency dated March 28, 2006, which indicated that the Defendant had completed only 4 out of the 10 days of community service to which he had been assigned. The Court signed the Declaration of Delinquency and the warrant for the Defendant's arrest remained outstanding. [*2]

On April 22, 2006, the warrant for the Defendant's arrest was vacated when the Defendant was returned to the Court's jurisdiction. On that date, Defendant entered a plea of guilty to a violation of the conditions of his discharge, and received a sentence of 60 days incarceration. A civil judgment was entered for the unpaid $160.00 surcharge.

To date, Defendant has not appealed his conviction in either Docket Number 2000KN067225 or Docket Number 2006KN000047.

By papers dated July 20, 2006, July 31, 2006, September 4, 2006 and January 10, 2007, Defendant now moves pro se to vacate his conviction in each of the aforementioned dockets under CPL Sec. 440.10, 440.20 and 440.30.^[FN1] Defendant asserts that at the time he entered his guilty pleas, he was misinformed of the collateral consequences of his convictions, namely, that each conviction would subject him to deportation from this country.

By an undated Affirmation post marked October 13, 2006, Defendant's counsel in Docket Number 2006KN000047 asserts that she does not "recall the conversation (she) had with (Defendant) about immigration consequences a guilty plea would have."

To date, the Court has not received a response to Defendant's motions from the People in either matter, or from Defendant's counsel for Docket Number 2000KN67225.

For the following reasons, Defendant's motions are hereby denied.

CPL Sec. 220.50(7) states that when a defendant pleads guilty to a felony "the court must advise the defendant on the record, that if the defendant is not a citizen of the United States, the defendant's plea of guilty and the court's acceptance thereof may result in the defendant's deportation." However, this statute also states that "[t]he failure to advise the defendant pursuant to this subdivision shall not be deemed to affect the voluntariness of a plea of guilty or the validity of a conviction, nor shall it afford a defendant any rights in a subsequent proceeding relating to such defendant's deportation, exclusion or denial of naturalization."

There is no corresponding section applicable to a plea of guilty to a misdemeanor.

Defendant asserts that since deportation is a direct and not a collateral consequence of a criminal conviction, the court's failure to inform him of the immigration consequences of his pleas in Docket Number 2000KN067225 and Docket Number 2006KN000047 should result in [*3]the reversal of his convictions. Yet, Federal and New York State courts that have considered this issue have consistently ruled otherwise.

In People v. Ford, 86 NY2d 397, 403, 633 NYS2d 270 (1995), the New York State Court of Appeals held that deportation is a collateral consequence of a conviction. As such, the court is not required to advise a defendant of said collateral consequences, and such collateral consequences do not affect the voluntariness of the plea. See, People v. Artusa, 2006 WL 2373431(Crim. Ct., Kings Cty, 2006); People v Boodhoo, 191 AD2d 448, 593 NYS2d 882 (2d Dept., 1993); People v Williams, 189 AD2d 910, 592 NYS2d 471 (2d Dept., 1993).

In People v. DeJesus, 12 Misc 3d 913, 914, 819 NYS2d 442 (Crim. Ct., NY Cty, 2006) the defendant had argued that the 1996 amendment to the Immigration and Nationality Act, which "virtually mandate(s) deportation of an alien convicted of a crime that relates to a controlled substance" makes deportation a direct consequence of a criminal conviction. See, 8 USC Sec. 1227(a)(2)(b)(i). DeJesus made clear that "(t)o determine whether a consequence of a sentence is direct or collateral courts apply a two-prong test. First, the court must determine if the consequence is one which has a definite, immediate and largely automatic effect on the defendant's punishment.'" 12 Misc 3d at 915, citing Ford, 86 NY2d at 403. "Second, the court must determine if the consequence is imposed by the court or an independent agency." 12 Misc 3d at 915, citing Sanchez v. United States, 572 F2d 210, 211 (9th Cir., 1977) and Ford, 86 NY2d at 403. Both of these factors must be present for a consequence to be deemed direct. 12 Misc 3d at 913.

In acknowledging that both the Federal and New York State courts had adopted this two-prong test, the DeJesus court held that "(d)eportation remains a collateral consequence of a guilty plea...and the failure to warn a defendant that his plea will subject him to deportation is not a ground upon which to vacate a conviction." 12 Misc 3d 917.

Thus, the branch of Defendant's motions addressed to the court's failure to advise him of the immigration consequences of his guilty pleas in both Docket Number 2000KN067225 and Docket Number 2006KN000047 must be denied. The court has no duty to inform a defendant of the collateral consequences of his plea of guilty to a misdemeanor.

Defendant further asserts that prior to the entry of his guilty plea in each docket, he did not receive the effective assistance of counsel in that each of his attorneys misinformed him of the immigration consequences of his guilty plea. This presents a separate issue under CPL Sec. 440.10(1)(h).

People v. Barclay, 12 Misc 3d 1158(A) (City Ct., Mt Vernon, 2006) makes a very clear distinction between a defendant who asserts that she was never advised of the collateral [*4]consequences of a guilty plea from a defendant who has been misinformed of the effect a guilty plea can have on immigration status. The Barclay court noted that only "an affirmative misstatement by counsel regarding defendant's immigration status may constitute ineffective assistance," not the mere failure to warn. 819 NYS2d at 212 citing People v. McDonald, 1 NY3d 109, 769 NYS2d 781 (2003).

A review of the sufficiency of a Defendant's allegations of ineffective representation of counsel rests within the discretion of the judge to whom the motion is made. See, People v. Tinsley, 35 NY2d 926, 927, 365 NYS2d 926 (1974). To resolve a claim of ineffective assistance of counsel, the court must engage in a two-prong analysis. The court must determine whether counsel's performance was deficient, and whether a defendant suffered actual prejudice as a result of counsel's deficiency. McDonald, 1 NY3d at 113; Strickland v. Washington, 466 US 668, 104 S. Ct. 2052 (1984); People v. Baldi, 54 NY2d 137, 444 NYS2d 893 (1981).

In McDonald, the New York State Court of Appeals ruled that an attorney's failure to properly advise a defendant of the immigration consequences of his guilty plea could be a basis for a claim of ineffective assistance of counsel. In that matter, however, the Court denied the defendant's application on the grounds that he failed to "show that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." 1 NY3d at 115, citing Hill v. Lockhart, 474 US 52, 59, 106 S. Ct. 366 (1984).

In following the two prong test enunciated in Strickland, the McDonald court stated that while counsel's "affirmative misrepresentation" regarding whether or not the defendant would be subject to deportation proceedings "falls below an objective standard of reasonableness," the defendant failed to make any showing that he was prejudiced by counsel's misstatement. 1 NY3d at 113-114.

Under McDonald, for a defendant to establish the second prong of the Strickland test, "the 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." 1 NY3d at 115, citations omitted.

Since the Court has not received a response to Defendant's motion from Defendant's counsel for Docket Number 2000KN67225, and given that Defendant's counsel for Docket Number 2006KN000047 states that she does not remember any discussion with the Defendant regarding the immigration consequences of his guilty plea in that matter, the Court will accept Defendant's assertion that he was misinformed of the repercussions of his plea in each case. Thus, Defendant has established the first prong of the Strickland test - his counsel's performance fell below minimum standards of competent representation in both dockets. [*5]

Defendant seeks to establish the second prong of the Strickland test when he asserts that "had the defendant's attorney informed the defendant that by pleading guilty to the instant offense he would also become subject to deportation, the defendant would not have pleaded guilty as he did. Rather, he would have chosen to proceed to trial..." Defendant has also requested that an evidentiary hearing be held on this issue.

In addressing this branch of a defendant's motion to vacate his plea, courts have agreed that an evidentiary hearing is necessary. See, People v. Becker, 9 Misc 3d 720, 800 NYS2d 499 (Crim. Ct., Queens Cty 2005), (defendant who asserted that he received incorrect advice regarding the public housing consequences of his guilty plea was entitled to a hearing on this topic). Whether or not this evidentiary hearing is formal in nature is another matter.

In People v. Nikovic, 2006 WL 2161012 (Crim. Ct., Richmond Cty, 2006), the court held a formal hearing regarding that defendant's claim that he had been misinformed of the deportation consequences of his guilty plea, taking testimony from both the Defendant and his former counsel. There the defendant was at liberty, and available to testify at the hearing; however, in People v. Salazar, 2006 WL 2474559 (Crim. Ct., NY Cty 2006), the court noted that a formal hearing was not necessary since that defendant was in federal custody.

Following the reasoning expressed in Salazar, this court will accept Defendant's affidavit in support of his application under CPL Sec. 440.10 as the uncontroverted testimony he would offer at any formal hearing of this matter. Further, since his attorney for Docket Number 2000KN067225 has not responded to Defendant's motion, and his attorney for Docket Number 2006KN000047 has indicated that she does not remember any conversations with the Defendant on this topic, a formal hearing is unnecessary in this matter.

In both Nikovic and Salazar both courts fully reviewed each defendant's prior experience and general knowledge of legal proceedings. In Nikovic, the court noted that "the defendant's effort to characterize himself as lacking in comprehension is belied by his accumulation of assets, his ownership of various businesses and his employment of a number of different attorneys." 2006 WL 2161012 at 5. Further, that defendant had previously engaged in protracted litigation to avoid deportation, and "he may readily have consulted an immigration attorney who had worked for him previously to be sure of the immigration consequences of entering a plea." Id. at 6. Thus, the court there found that the defendant did not plead guilty due to any affirmative misrepresentation by his counsel.

In Salazar, the court noted that the defendant "has a criminal history dating back to 1990," which gave that defendant a "familiarity with the criminal justice system." 2006 WL 2474559 at 4. The court noted that the defendant had warrants issued for his arrest "on more than one occasion," and that "the Criminal Justice Agency deemed him a high risk for failing to [*6]appear and did not recommend him for release." Id. at 4. Thus, the Salazar court ruled that the defendant's "motion papers and his affidavit provide no facts that would convince this court that had he known the immigration consequences at the time of his plea, those potential consequences would have overridden his desire for immediate release." Id. at 4.There, too, the court denied defendant's motion to vacate his conviction.

The instant application presents mMany of the same factors which were present in Salazar. In both Docket Number 2000KN067225 and Docket Number 2006KN000047, this Defendant was not recommended for release by the Criminal Justice Agency. His criminal history shows that he has used 13 aliases and four different dates of birth, as well as claiming both Guyana and New York as his place of birth. He has a 10 page criminal record, with contacts dating back to 1986, including a conviction for which he was granted Youthful Offender status, for which he served a sentence of 5 years of probation.

This Defendant has served a year in prison, as well as 5 years of probation after a March 28, 1991 conviction for two counts of Attempted Sale of a Controlled Substance in the Third Degree (PL Sec. 110/220.39), a Class C felony, which satisfied 2 separate indictments. His Youthful Offender Probation was revoked as a result of the aforementioned felony convictions. On September 27, 1993, Defendant was convicted of Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 265.01), a Class A misdemeanor, for which he served another year in prison. At that time, his felony probation was revoked, and he received a year sentence concurrent with the misdemeanor sentence. On February 8, 1995, he was convicted of Criminal Possession of a Controlled Substance in the Seventh Degree, a Class A misdemeanor, for which he received 3 years probation.

By the time he had entered his plea of guilty in Docket Number 2000KN067225, this Defendant had accumulated 4 criminal convictions, two for felonies and two for misdemeanors, as well as a conviction for which he was accorded Youthful Offender Status. Further, during that time, he served several years in prison, several sentences of probation, violated the terms of his probation, and had 11 warrants issued for his arrest. Clearly, as did the defendant in Salazar, this Defendant is also familiar with the criminal justice system.^[FN2]

Thus, it is apparent to this court that at the time this Defendant plead guilty in each matter, he was obviously far more concerned with remaining at liberty than with any potential immigration consequences his plea might have in the future. In Docket Number [*7]2000KN067225, the Defendant was at liberty, having posted a bail of one thousand dollars. Defendant would have known that he was facing a one year sentence if he had been convicted after trial in that matter since he had served such a one year term for a misdemeanor conviction in the past. Therefore, he opted for a plea that involved no jail time.

Further, in Docket Number 2006KN000047, Defendant was again facing a one year sentence. He would certainly have wanted the benefit of a sentence that secured his release in that matter with a Conditional Discharge. In fact, Defendant never appealed either conviction, nor made any complain until after he had been sentenced to 60 days in jail for the violation of his conditional discharge in Docket Number 2006KN000047.

Thus, following the rationale of Salazar, in light of this Defendant's extensive criminal history and past experience, Defendant's assertions regarding the effect of his attorneys' mis-representation of the immigration consequences of his guilty plea in both Docket Number 2000KN067225 and Docket Number 2006KN000047 are not credible.

Therefore, since the Defendant has failed to establish that he was prejudiced by his attorneys' ineffective assistance, Defendant's pro se motions dated July 20, 2006, July 31, 2006, September 4, 2006 and January 10, 2007 are all denied.

All other arguments advanced by Defendant have been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New YorkFebruary 5, 2007

_______________________________Hon. John H. Wilson, JCC