This matter comes on by Appeal of the Decision dated July 12, 2006 by Town Of Fallsburg Judge Bart Rasnick denying defendant's 440.10(h) motion to vacate his 2003 assault conviction.

This Court granted defendant's motion for leave to appeal the Town of Fallsburg Justice Court's 440 Decision dated July 12, 2006 because the issue is compelling but did not grant leave to appeal defendant's 2003 assault conviction as the time to appeal has long since passed.

Defendant submits Appellant Brief. [*2]

The People submit Respondent Brief.

The Town of Fallsburg Justice Court submits a Return On Appeal. Said Return includes defendant's motion and reply affirmation, the People's affirmation in opposition and the July 12, 2006 Decision from the Justice Court denying the 440 motion.

This Court held a fact finding hearing on November 3, 2006.

Memorandums of law were submitted by each party thereafter, by direction of this Court, and the matter is fully submitted.

The issue in this appeal is whether the Justice Court was in error when it denied defendant's 440 motion to vacate his plea because his attorney did not advised him that potential deportation was a collateral effect of his plea which rises to ineffective assistance of counsel.

Defendant argues that if he were advised as to potential deportation he would not have pled guilty but, instead, would have gone to trial.

The defendant is an immigrant from El Salvador who has been in United States for fourteen years. He is a hard worker who has been employed by the same company for fourteen years and has risen from entry level laborer to supervisor.

The defendant was a law abiding person until his conviction in April, 2003 for DWAI and the instant assault conviction and sentence in October, 2003. He has had no further arrests to date.

For purposes of this appeal, it was stipulated at this Court's hearing, that defendant's immigration status was not discussed by the defendant or his legal aid attorney on the DWAI case or by the defendant or his retained attorney on the instant assault case. Neither of the attorneys involved nor the defendant himself ever brought up his immigrant status during either of his two criminal matters. Also, since no language interpreter was ever requested, there is no claim of confusion caused by a language barrier.

Defendant did have a retained immigration attorney working on his status for approximately five years at the time of his two criminal matters in 2003. But, there are no allegations that he ever informed his immigration attorney about either of his two criminal cases or asked him if either, or both, might effect his immigration status. Nor are there any allegations that the defendant requested either of his two defense attorneys to contact his immigration attorney.

The defendant applied to the United States Citizenship & Immigration Service (USCIS)for Temporary Protected Status (TPS) and was denied based upon the regulations of the [*3]Immigration & Nationality Act (INA). Said regulations make an immigrant ineligible for TPS if he has been convicted of two or more misdemeanors.

Federal regulations define misdemeanor as any offense that is subject to a penalty of imprisonment for a term of more that five days regardless of the term actually served. See, 8 C.F.R. §244.1.

There are no allegations herein that the defendant is being deported.

Deportation may be a collateral effect of a defendant's conviction and the failure of an attorney to discuss this potential is not, in and of itself, a basis for ineffective assistance of counsel. People v Ford, 86 NY2d 397 (1995); People v Hall, 16 Ad3rd 848 (3rd Dept., 2005).

Defendant agrees as to the state of the law in New York but argues that it is time to expand on the precedents based upon People v McDonald, 1 NY3rd 109 (2003) and People v Salazar, 2006 NY slip op 51647U (Crim. Ct. City of NY, 2006).

In both McDonald, supra and Salazar, supra the courts found, if an attorney gives incorrect advice, as opposed to no discussion at all, regarding immigration status, coupled with a reasonable probability that defendant would not have pled guilty but would have gone to trial, is substandard representation and may have been ineffective assistance of counsel.

The Special Committee on Collateral Consequences of Criminal Proceedings of the New York Bar Association and the American Bar Association recommend that defense attorneys discuss potential deportation with their clients even though it is a collateral effect of a conviction.

Defendant urges this Court to expand the law and find that under the circumstances herein failure to discuss potential deportation rises to ineffective assistance of counsel.

This Court finds that the Town of Fallsburg Justice Court made no errors of law in denying defendant's 440 motion in its Decision dated July 12, 2006.

Further, this Court, at this time, declines to expand upon the precedents of Ford, supra and Hall, supra for the following reasons.

First, the defendant has no deportation proceedings pending since his 2003 convictions and he has not claimed a language difficulty issue.

Second, the defendant had been represented by a retained immigration attorney for at least five years at the time of his criminal proceedings in 2003 and there are no allegations that he either spoke to his immigration attorney about his criminal proceedings or asked either of his [*4]two defense attorneys to contact his immigration attorney regarding any deportation issues.

Third, although a 440 motion may be made at any time, defendant herein waited three years to move to vacate his conviction and there is, to this date, no deportation proceedings pending.

Lastly, the facts herein presented do not warrant an expansion of the law under either the defendant's due process rights or in the interest of justice.^[FN1]

Based upon the above, it is

ORDERED, that defendant's appeal from the Decision dated July 12, 2006 of the Town of Fallsburg Justice Court denying his 440 motion to vacate his 2003 assault conviction is denied and said Decision is affirmed.

This shall constitute the Decision and Order of this Court.

DATED: February 23, 2007

Monticello, NY

____________________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate