Pursuant to CPL §440.10(1)(h), Defendant Derek Busgith moves to vacate the judgment against him entered on April 24, 1991, following his plea to two counts of Attempted Robbery in the Second Degree (Penal Law §§110 and 160.10[1]). Defendant, a resident alien from Guyana, claims he did not receive effective assistance of counsel at the time of his guilty plea concerning the plea's impact upon Defendant's immigration status. At the time the motion was filed, Defendant was already in the custody of the Homeland Security Department's Bureau of Immigration and Customs Enforcement at the Buffalo Federal Detention Facility in Batavia, New York, with a final order of removal pending.

In essence, Defendant says his now deceased trial attorney, Robert A. Katz, Esq., denied him effective assistance of counsel by failing to advise that pleading guilty to Attempted Robbery in the Second Degree, a violent felony, could result in immigration consequences. At least, Defendant says, he is entitled to a factual hearing upon what advice his attorney gave about immigration and innocence. In this regard, Defendant relies upon the Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), as the basis for his argument that failure to properly advise about the effect of a guilty plea upon immigration status rises to ineffective assistance of counsel and requires that the guilty plea be vacated.

Discussion

Defense counsel advised Chambers on May 1, 2012, that the Justice Department's prosecution has resulted in Defendant's deportation. In response to that representation, the prosecutor argues the motion should be dismissed without prejudice because Defendant is no longer in the power and under the control of the Court (see generally, People v. Genet, 59 NY 80 [1874]) and is not available to obey the Court's mandate (see generally, People v. Diaz, 7 NY3d 831 [2006]). Based upon said representation, the Court determines the instant motion moot because Defendant has been deported during its pendency (see, People v. Worklis, 2011 NY Slip Op 33587U [Sup. Ct. Kings 2011]) (see also, People v Black, 2009 NY [*2]Slip Op 33015U [Sup Ct. Kings 2009] [deported defendant no longer amenable to court's jurisdiction]). The motion is dismissed in its entirety.

While counsel advises that Defendant is attempting to reverse the immigration court's determination from abroad, the Court sees no justification for either allowing the motion to be suspended or otherwise allowed to remain pending. None of the appellate considerations advanced in People v. Ventura, 17 NY3d 675 (2011), exist here; and no other reason justifies jurisdiction in this matter. The prosecutor agreeing there is no objection to dismissal without prejudice to renew if Defendant's immigration circumstances change, Defendant's motion to vacate judgment is so denied without prejudice as moot. The Clerk of the Court is to strike the matter from the docket.

WHEREFORE, based upon the foregoing,^[FN1] it is

ORDERED that Defendant Derek Busgith's motion, pursuant to CPL §440.10(1)(h), seeking to vacate the judgment against him entered on April 24, 1991, is DENIED without prejudice; and it is further

ORDERED that the Clerk of the Court is to strike the matter from the docket.

The foregoing constitutes the Decision and Order of the Court.

Dated: Bronx, New York

July 10, 2012

_________________________________HON. DOMINIC R. MASSARO, JSC