Defendant Juan Delcastillo, pursuant to CPL §440.10, moves to vacate his conviction for Assault in the Second Degree (Penal Law §120.05) and for Bail Jumping in the First Degree (Penal Law §215. 57). Defendant, a resident alien, claims he would not have pleaded guilty to the charges if he knew that he would be subject to deportation because of his conviction. As a result of his guilty plea, the Court sentenced Defendant to time served, probation of five years, community service, and imposition of mandatory surcharge and victim's assistance fee (see, Defendant's Exhibit A).

The District Attorney opposes Defendant's relief in all respects, including disputing the felonies to which Defendant pleaded guilty. The prosecutor argues that his office's and the Court's records show that Defendant's conviction also involves criminal possession of a controlled substance (see, Penal Law §220.18[1]). In support, the District Attorney submits a Department of Homeland Security notice in the United States Immigration Court that the Department instituted removal proceeding against Defendant seeking to deport him to his Dominican Republic homeland based upon his conviction for Criminal Possession of a Controlled Substance in the Second Degree ^[FN1] which is a violation of Immigration & Nationality Act §237(a)(2)(B)( I )^[FN2] (see, People's Exhibit 1). Further, the prosecutor disregards [*2]Defendant's reliance upon State v. Gaitan, 419 NJ Super. 365 (NJ App Div. 2011)^[FN3] as support for the retroactivity of Padilla v. Kentucky, — US —, 130 S. Ct. 1473 (2010)(ineffective representation where criminal defense counsel fails to advise client of impact of guilty plea on immigration status) and argues instead that the United States Supreme Court case is not retroactive (see, People v. Feliciano, 2011 NY Slip Op 50471[U][Sup Ct. App Term 1st Dept. 2011]). Also, Defendant's counsel's conduct must be measured by professional norms existing at the time — fifteen years ago — when Defendant's plea was taken. Applying such standards, the District Attorney maintains that our state courts did not recognize failure to advise a defendant regarding immigration consequences as a ground for ineffective assistance of counsel in a criminal case at said time.^[FN4]

Defendant, in response, submits (1) his immigration counsel's letter stating that the pending immigration proceeding involves assault and bail jumping pleas; (2) a June 6, 1996 sentencing transcript, and (3) Defendant's original criminal attorney s affirmation that Defendant pleaded guilty to assault and bail jumping. In essence, Defendant says his immigration counsel advised that his plea to assault places him in jeopardy since that crime is listed among "aggravated felonies" under Immigration & Nationality Act §101(a)(43)(T).

The Court finds no dispute exists that Defendant was a lawful permanent resident at the time of the plea and that his pending removal appears based upon a criminal conviction. Nothing presently in the record shows Defendant's criminal counsel advised him about the effect of a guilty plea upon his immigration status. What remains in dispute is the exact terms of his guilty plea and whether the plea involved narcotics.

Legal Discussion

Relying upon the United States Supreme Court's decision in Padilla v. Kentucky, supra., Defendant argues that his criminal counsel's failure (omission) to advise him about the effect of his guilty plea upon his immigration status results in his receiving ineffective assistance of counsel. This requires that the guilty plea be vacated. According to Defendant, Padilla expands the protection afforded non-citizen defendants in criminal cases because our Court of Appeals previously held that erroneous advice concerning deportation consequences can constitute ineffective assistance of counsel where Defendant says he would not have pled guilty except for that advice (see generally, People v. McDonald, 1 NY3d 109 [2003]). Further, Defendant maintains that the Court is obligated to conduct a hearing to determine whether his plea was coerced as a result of ineffective assistance of counsel (see generally, People v. Mack, 203 AD2d 131 [1st Dept. 1994]).

Because of the confusion present, the Court requires the parties to clarify the record. First, the Court requires that the parties obtain relevant records in the immigration proceeding so that the legal basis and present status of the federal government's deportation case against Defendant can be determined. Next, the Court requires the parties to stipulate the exact terms of Defendant's guilty plea and any subsequent modification thereof. If the parties cannot agree, they are to submit all evidence they wish the Court to consider in making that determination. Lastly, the Court requires that the parties submit any presentencing memoranda previously submitted in the original cases and any relevant correspondence or [*3]filings in the immigrations proceeding.

In the event that the issue of whether Defendant plead guilty to criminal possession of a controlled substance remains in dispute or the parties agree that Defendant did so plead, the Court requires that the parties advise when the immigration statute, 8 USC §1227(a) (2)(B)( I ), was effective and whether it applies to Defendant's deportation proceeding.Following the above development, the Court will determine whether a bench hearing is required (see generally, People v. Holder, 32 AD3d 734 [1st Dept. 2006]).

BASED UPON the foregoing,^[FN5] it is

ORDERED that the parties are to respond to the Court's directions above within thirty days of entry of this order, and it is further

ORDERED that the Clerk is to note upon the record that Defendant's CPL §440.10 motion, seeking to vacate his conviction for Assault in the Second Degree (Penal Law §120.05) and for Bail Jumping in the First Degree (Penal Law §215. 57) is SUSPENDED pending preliminary resolution directed herein.

The foregoing constitutes the Order of the Court.

Dated: Bronx, New York

July 21, 2011

_________________________________HON. DOMINIC R. MASSARO, JSC