By motion dated August 28, 2009, defendant moved for a second time to vacate his 2002 conviction by guilty plea to Criminal Sale of Marijuana in the Second Degree on the grounds of ineffective assistance of counsel. By affirmation dated May 7, 2010, the People oppose the motion.

The Court notes that although this is defendant's second CPL 440 motion based on the ineffective assistance of counsel, this motion is based on omissions of advice and on a newly raised allegation of affirmative mis-advice by defendant's attorney of the consequences of defendant's plea, thereby rendering his 2002 plea involuntary.

A hearing on this motion was held on March 12, 2010 (see People v Williams, ____AD3d____ [3rd Dept 2010]). At the hearing defendant was the only witness to testify. Based upon the evidence adduced at the hearing and otherwise in the record, the Court makes the following findings. [*2]

Defendant was born in Jamaica and came to this country when he was 13 years old; he is not a citizen of the United States. He has been found to be a deportable person pursuant to 8 U.S.C. 1227(a)(2)(A)(iii) as his 2002 conviction for a sale of marijuana constitutes an "aggravated felony" as defined by 8 U.S.C. §1101(a)(43)(B) (illicit trafficking of a controlled substance). He is presently incarcerated in a Federal Detention Facility awaiting deportation.

On January 30, 2002, defendant was indicted by sealed indictment No.21S-2002 for two counts of Criminal Sale of Marijuana in the Second Degree and one count of Criminal Sale of Marijuana in the Third Degree alleging three separate sales to an undercover police officer. On June 20, 2002, with privately retained counsel present, defendant entered a plea to Criminal Sale of Marijuana in the Second Degree in full satisfaction of all charges; and on August 8, 2002, in accord with a pre-plea agreement, defendant was sentenced to a split sentence of 5 years probation and 6 months of incarceration. Defendant waived his right to appeal; no notice of appeal was filed; and no appeal was taken. Defendant completed his jail term and began his period of probation.

On July 23, 2004 a violation of probation alleging involvement with cocaine and alcohol was filed. Defendant was arraigned on this charge and on August 3, 2004 his current counsel was assigned to represent him. On August 5, 2004, with counsel present, defendant entered a plea of guilty to violation of probation in which he admitted the underlying allegations of the violation; his probation was revoked and he was re-sentenced to a term of one year in jail. No notice of appeal was filed and no appeal was taken on this conviction.

On June 7, 2006, defendant was indicted for Criminal Possession of a Controlled Substance in the Fifth Degree (cocaine), Operating a Motor Vehicle With a Suspended Registration, Unlawful Possession of Marijuana and Failure to Maintain Lane. Defendant was also indicted in Orange County for separate charges alleging possession of cocaine. On October 5, 2006, defendant entered a negotiated plea in the Sullivan County Court to Criminal Possession of a Controlled Substance in the Fifth Degree in full satisfaction of all Sullivan County charges and, on November 1, 2006, was sentenced as a second felony offender to a determinate term of 3 ½ years with 2 years post release supervision. No notice of appeal was filed and no appeal taken on this conviction. Defendant also pled and was sentenced [*3]in Orange County on that indictment for possession of cocaine.

In May 2008, defendant, pro se, filed a CPL 440 motion seeking to vacate the 2002 conviction on the grounds of ineffective assistance of counsel alleging that he was not informed by his attorney of the risk of deportation because of his 2002 conviction, that his counsel failed to inform him that any conviction for a controlled substance sale would result in deportation, that his counsel should have requested that the Court recommend against deportation and on the grounds that the Court should also have informed him of the risk of deportation. By Decision and Order dated October 10, 2008, this Court denied the motion. Defendant did not appeal.

Thereafter, defendant, represented by counsel, brought the within motion, raising the same issues as the 2008 motion and the additional issue of ineffective counsel due to defendant's counsel having incorrectly advised him on the risk of deportation after conviction.

A fair assessment of attorney performance

requires that every effort be made to eliminate

the distorting effects of hindsight, to reconstruct

the circumstances of counsel's challenged conduct,

and to evaluate the conduct from counsel's

perspective at the time. Because of the

difficulties inherent in making the evaluation,

a court must indulge a strong presumption that

counsel's conduct falls within the wide range of

reasonable professional assistance; that is, the

defendant must overcome the presumption that, under

the circumstances, the challenged action "might be

considered sound trial strategy." See Michel v.

Louisiana, [350 US 91,] 101 [1955].(Strickland v

Washington (466 US 668, 689 [1984]).

At the hearing defendant testified that in 2002 his privately retained counsel was aware that he was not a U.S. citizen, that he asked his counsel only once about the consequences of a plea on his immigration status, and that his counsel advised him prior to his entry of his guilty plea that, as this was defendant's first conviction, it would not result in his deportation. He further stated that he did not discuss his immigration status or the possibility of deportation with his attorneys in the subsequent criminal proceedings involving controlled substances. [*4]

Defendant's counsel in 2002 was not called as a witness; neither were family members. Defendant's attorney's hearsay report to the Court that the former counsel had no memory of the matter is inadmissable and, in any event, is incomplete and inadequate information as it fails to address whether former counsel reviewed his file, what his and/or her usual practice was in these circumstances or whether both prior attorneys appearing for defendant during the prosecution were contacted.

Applying the two-prong test of Strickland; see also Padilla v Kentucky(___US___, 130 S. Ct. 1473, 1485 [2010]), the Court now finds that defendant has failed to demonstrate the ineffective assistance of counsel under the circumstances presented in this case. The defendant's unsupported testimony, which also contradicts his prior sworn statements that his attorney failed to inform him of the consequences of his plea, is not credible. Defendant has failed to otherwise produce competent evidence in support of his claim that in 2002 defendant's counsel mis-advised him, and/or failed to advise him, about mandatory deportation as a consequence of his plea.

Defendant was faced with a trial for three sales to an undercover police officer, a potential prison sentence if convicted and mandatory deportation. The plea agreement, which resulted in a split sentence with county jail, procured by defendant's former counsel qualifies as "reasonable professional assistance" (see Strickland supra), even though it also carried mandatory deportation. Defendant has failed to convince the Court that a rejection of the advantageous plea bargain and exposure to a potentially lengthy prison sentence on a D felony, if convicted after trial, with mandatory deportation, would have been rational.

Further, it was not incumbent upon defendant's attorney in 2002 to advise him of the consequences of potential future crimes or to request that the Court recommend against deportation.

Defendant has since been convicted of two other drug felonies involving possession of cocaine (also deportable offenses pursuant to 8 U.S.C. §1227[a][2][B][I]), in addition to the violation of probation for the 2002 conviction.

Accordingly, defendant has failed to meet his burden pursuant to CPL 440.30(6) and the motion to vacate defendant's 2002 conviction is denied.

This shall constitute the Decision and Order of this Court.

DATED: May, 2010 [*5]

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge