Defendant Julian Casada, who has already been deported to the Dominican Republic, has submitted two interrelated pro se motions dated July 16, 2010, which were signed and notarized at the United States Embassy in Santo Domingo.^[FN1] Defendant is seeking to vacate his judgments of conviction and set aside his sentences in the above-captioned cases pursuant to CPL 440.10 and 440.20 and in the alternative defendant seeks an evidentiary hearing. Defendant maintains that the sentencing Court^[FN2] mistakenly sentenced him to a felony, instead of a misdemeanor,^[FN3] thereby causing his deportation from this country. He also contends that the Court failed to advise him of the deportation consequences of his plea and that his counsel affirmatively provided misadvice concerning the immigration consequences of that plea. The People have submitted a November 9, 2010 Affirmation and Memorandum of Law in opposition to defendant's motions. The Court issued an Interim Order directing the District Attorney to provide the Court and defendant with additional [*2]information and inviting further briefing, to which the prosecutor responded with a Supplemental Affirmation and Memoranda of Law dated December 20, 2010.

Defendant and co-defendant Pedro Morrel^[FN4] were indicted under Indictment No. 1305-94 for criminal sale of a controlled substance in the third degree (Penal Law § 220.39), criminal possession of a controlled substance in the third degree (Penal Law § 220.16-1) (three counts) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) (three counts). According to the felony complaint and the People's answer to the instant motion these counts relate to an alleged sale of heroin to an undercover police officer ("UC"). Specifically it was alleged that the UC approached co-defendant Morrel in front of 236 Knickerbocker Avenue, Brooklyn on January 27, 1994 and asked for three glassines of heroin. Morrel directed defendant to get the heroin. Defendant then went inside the building and returned with three glassines of heroin which he handed the UC in exchange for money. The police recovered an additional eight glassines of heroin from inside the lobby of the apartment building.

Defendant was also indicted under Indictment No. 2301-94 for criminal sale of a controlled substance in the third degree (Penal Law § 220.39), criminal possession of a controlled substance in the third degree (Penal Law § 220.16-1) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) for the alleged sale of heroin to an UC on February 23, 1994 at the same location as the other indictment. It was charged in that case that a UC approached defendant and requested two glassines of heroin in exchange for twenty dollars. Defendant took the money and told the UC to wait inside the lobby of the building. Defendant went inside one of the apartments in the building and upon returning handed the UC two glassines of heroin.

Prior to his arraignment on the two indictments a bench warrant was issued on March 16, 1994 against defendant under Indictment No. 1305-94. A second bench warrant was issued on April 11, 1994 under Indictment No. 2301-94. Nearly seven years later defendant was returned on the bench warrants on March 13, 2001.

On May 29, 2001 defendant pleaded guilty before the late Justice Marrero in Part 25 of this Court. He was represented by Elias Martinez, Esq. who court records indicate is now also deceased. Likely because of the ages of the cases, caused by defendant's absence on bench warrants, the People offered misdemeanor pleas and probation, which defendant and the Court found acceptable. Defendant pleaded guilty to one count of criminal possession of a controlled substance in the seventh degree on each of the pending indictments in full satisfaction of all the charges. A presentence report was waived and defendant was sentenced that same day to three years probation under each indictment to run concurrently.^[FN5] Defendant waived his right to appeal and no appeals have been filed [*3]by him nor has defendant filed any post-judgment motions other than the ones at bar.

According to the People's answer, based upon information provided by Juan Montalvo, the Immigration and Customs Enforcement ("ICE") Deportation Officer for the New York City region, defendant, who is a native and citizen of the Dominican Republic, returned in 2004 to the United States "after having been abroad" and was stopped by Customs at Newark Liberty International Airport. Defendant was informed that the two prior convictions which are the subject of the instant motions made him removable and he was subsequently deported to the Dominican Republic.

In the People's Supplemental Affirmation additional facts were provided from ICE Officer Timothy McGuire, as follows:

1. "[D]efendant was admitted to the United States on July 15, 1993, as a lawful permanent resident."

2. "[D]efendant attempted to re-enter the United States at Newark Liberty International Airport on November 11, 2004."

3. "On December 15, 2004, a federal immigration judge in Newark, New Jersey, issued an oral decision directing defendant's removal from the United States. The People do not possess a copy of that oral decision. But the People do not dispute that the basis for defendant's removal was his convictions pursuant to Kings County Indictment Numbers 1305/94 and 2301/94."

4. "On January 20, 2005, defendant was removed from the United States."

5. "Defendant filed a notice of appeal from the order of removal. But on April 28, 2005, the Board of Immigration Appeals dismissed defendant's appeal on the ground that defendant's notice of appeal was untimely filed."

The People's first argument to the Court in opposition to defendant's motions is that his "motion should be dismissed without prejudice because, as a result of his deportation to the Dominican Republic, defendant is not available to obey the mandate of this Court" (People's Memorandum of Law at 1. The same argument is repeated in People's Supplemental Memorandum of Law at 1-2). The Court recognizes that this is a time-honored policy followed by our appellate courts. See People v Diaz, 7 NY3d 831 (2006); People v Genet, 59 NY 80, 81 (1874); People v Abue, 68 AD3d 1542 (3d Dept 2009); People v McFee, 61 AD3d 1000 (2d Dept 2009), lv denied 13 NY3d 798 (2009); People v Diaz, 61 AD3d 696 (2d Dept 2009); People v Wilamowski, 20 Misc 3d 134(A)(App Term 2nd, 11th Dists 2008), lv denied 10 NY3d 940 (2008). At least one trial court addressing a similar CPL 440.10 motion acknowledged the "Catch 22" position in which this policy places a defendant who potentially may have a meritorious claim (but I do not decide here whether defendant is in that category). See People v Hildago, 12 Misc 3d 1203(A) (Sup Ct NY County 2006). While the Court will follow this policy, I will now proceed to address the merits and lack of merit of all of defendant's various claims, which, it will be seen, require different treatment.

Should defendant in the future be amenable to this Court's jurisdiction and any further proceedings which may be ordered, defendant may under certain circumstance be entitled to an evidentiary hearing. See CPL § 440.30(3) (5); CPL § 440.30(6); People v Gruden, 42 NY2d 214, 218 (1977). Defendant would have to allege a sufficient claim of ineffective assistance of counsel under Padilla v Kentucky, __US__, 130 S Ct 1473 (2010) and People v McDonald, 1 NY3d 109 (2003), including the prejudice component for a claim under Strickland v Washington, 466 US 668 [*4](1984), none of which are satisfied by his present bare-bones pro se papers. In other words, based on defendant's papers and the present record, the Court could not summarily grant his motion. See CPL 440.30(6); People v Williams, 72 AD3d 1347 (3rd Dept 2010); People v Marshall, 66 AD3d 1115 (3d Dept 2009); People v Argueta, 46 AD3d 46 (2d Dept 2007), lv dismissed 10 NY3d 761 (2008); People v McKenzie, 4 AD3d 437 (2d Dept 2004). The Court notes that defendant must take some responsibility for the situation in which he finds himself, by causing a nearly seven year delay while he was on a bench warrant, during which time his co-defendant was tried and convicted of a top count of Indictment 1305-94, and by another six year delay in making this 440.10 motion. This situation presents obvious and potentially insurmountable obstacles for the People to bring defendant to trial, should these judgments ever be vacated.^[FN6]

Defendant has filed two notices of motion - one seeking to set aside his sentences pursuant to CPL 440.20 and the other to vacate the underlying judgments pursuant to CPL 440.10. Defendant, however, does not elaborate upon his 440.20 claim and has failed to demonstrate that the sentence imposed was "unauthorized, illegally imposed or otherwise invalid as a matter of law," nor does it appear he would be able to do so. (CPL 440.20-1). See People v Williamson, 72 AD3d 1339 (3d Dept 2010), lv denied 15 NY3d 779 (2010); People v Johnson, 52 AD3d 402 (1st Dept 2008), lv denied 11 NY3d 789 (2008); People v Cunningham, 305 AD3d 516 (2d Dept 2003). Accordingly, defendant's CPL 440.20 motion is hereby summarily DENIED on the merits.

As for one of his 440.10 claims, defendant in his sparsely worded pro se motion argues that he pleaded guilty to Class A misdemeanors but the Court mistakenly sentenced him "to a felony to a [sic] three years probation." Defendant maintains that as a result of this "mistake" he was detained by immigration officials. This Court, however, is procedurally barred from considering this claim since defendant's plea and the classification of his sentence are matters of record which could have been raised on a direct appeal. (See CPL 440.10[2][b]; see also People v Cuadrado, 9 NY3d 362 (2007) and People v Cooks, 67 NY2d 100 [1986]). In any event, the plea minutes^[FN7] clearly indicate that defendant pleaded guilty to two counts of criminal possession of a controlled substance in the seventh degree, which are Class A misdemeanors and not felonies, and the sentence of three years probation is an authorized misdemeanor sentence. See Penal Law § 65.00.^[FN8] The People correctly argue this does not mean that defendant was convicted of a felony as a matter of state law. This [*5]claim therefore is also summarily DENIED.

Defendant also challenges his judgments of conviction on the grounds that the Court failed to advise him of the deportation consequences of his plea. Again this is a matter of record and this Court is procedurally barred from determining this issue. See CPL 440.10(2)(c); People v Cuadrado, 9 NY3d at 364-365; People v Cooks, 67 NY2d at 102, 104. Moreover, defendant's contention is without merit. During the plea proceedings the following colloquy took place: [Defendant had a Spanish interpreter].

THE COURT: Are you a United States citizen?

THE DEFENDANT: No.

THE COURT: If you are not a United States citizen, your immigration status may be jeopardized by a plea of guilty, and you may be deported at any time prior to the expiration of your sentence.^[FN9] Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Take a moment now to speak to your attorney and then tell me whether everything you've told me is the truth.

At this time, Defendant conferring.)

THE COURT: Is everything you told me the truth?

THE DEFENDANT: Yes.

THE COURT: The Court is satisfied the defendant understands the nature of the charges, the nature of the plea, and the possible consequences of his plea . . .(May 29, 2001 Plea Minutes at 10).

The Appellate Division - Second Department has very recently held that a court's admonition pursuant to CPL 220.50(7)^[FN10] that a defendant's plea "may" subject him/her to deportation is proper even if that plea of guilty made deportation a virtual certainty. The Court stated:

Irrespective of whether deportation was a certainty, and contrary to the defendant's contention, the County Court's statement regarding the consequences of the plea with respect to the defendant's [*6]deportation was not misleading, but rather served "to put [the defendant] on notice that his guilty plea had potential immigration consequences and provided an opportunity to pursue those consequences more fully with his attorney or with an immigration specialist" (Zhang v United States, 506 F.3d 162, 169: see CPL 220.50{7}; cf Padilla v Kentucky, __US __, 130 S.Ct. 1473, 176 L.Ed.2d 284).

People v Contant, 77 AD3d 967, (2d Dept Oct 26, 2010). This claim is therefore summarily DENIED.

Defendant, in what the Court deems his third CPL 440.10 claim, maintains that he was denied the effective assistance of counsel because he was affirmatively misinformed about the deportation consequence of his plea. See Padilla v Kentucky, supra; People v McDonald, supra; People v Garcia, 29 Misc 3d 756 (Sup Ct, Kings County 2010). Specifically, defendant states in his affidavit in support of his motion that:

The Court failed to advise him of the deportation consequences of his plea also defendant his attorney affirmatively misinformed him that he would only have to serve the three years probation and that there would be no immigration consequences of his plea. Defendant was deported on the basis of having been convicted of a felony offence. Defendant was prejudiced by the Court (emphasis provided).

For reasons addressed previously this aspect of defendant's motion should be DISMISSED WITHOUT PREJUDICE in light of defendant's present position. He has already been deported to the Dominican Republic and is not now within the Court's jurisdiction nor available to follow the Court's mandate.

To summarize the Court's rulings on these motions, defendant's CPL 440.20 motion is summarily DENIED in all respects, defendant's CPL 440.10 claims which raise matters of record are also summarily DENIED in all respects, and defendant's CPL 440.10 ineffective assistance of counsel claim is DISMISSED WITHOUT PREJUDICE.

The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal the denial of defendant's CPL 440.20. This application must be made within 30 days of service of this Decision and Order. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted (22 NYCRR 671.5).

The clerk is directed to mail a copy of this Decision and Order to defendant Julian Casada aka Domingo Romero, at the address he provided in his motions: 112 37th Street, Apt. No.2, Union City, New Jersey 07087 and to Assistant District Attorneys Leonard Joblove, David Korngold and Ann Bordley, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, New York 11201.

IT IS SO ORDERED.

ENTER, [*7]

____________________________

J.S.C.