Supreme Court, Suffolk County, February 2, 2022

Legal Aid Society of Suffolk County, Inc., Central Islip (Christina M. Gaudio and Mayerline Michel-Rossi of counsel), for defendant.

Timothy D. Sini, District Attorney (Thomas Costello of counsel), for plaintiff.

By notice of motion dated December 10, 2021, the defendant seeks to reargue this court's decision dated November 30, 2021, which granted his motion, pursuant to CPL 440.46-a, to vacate his judgment of conviction to the extent of vacating his judgment of conviction for criminal possession of marijuana in the second degree (former Penal Law § 221.25), a class D felony, which has since been repealed, and substituting it therewith criminal possession of cannabis in [*2]the third degree (Penal Law § 222.30), a class A misdemeanor.

The People oppose the motion by affirmation dated January 19, 2022.

The defendant states that he pleaded guilty to one count of criminal possession of marijuana in the second degree (former Penal Law § 221.25), and was sentenced on December 29, 1982, to one year of incarceration. At the time of his conviction, that charge was a class D felony but today is only a misdemeanor. The defendant states that he moved here from Mexico when he was nine years old with his parents, and his conviction in 1982 of criminal possession of marijuana in the second degree (former Penal Law § 221.25) has always subjected him to possible deportation, and has prevented him from becoming a United States citizen. In addition, the defendant notes that despite this court's reduction—in its November 30, 2021 decision—of his conviction from a class D felony to a class A misdemeanor of criminal possession of cannabis in the third degree (Penal Law § 222.30), he will continue to be prevented from becoming a United States citizen and possibly face deportation since under immigration law, criminal possession of cannabis in the third degree (Penal Law § 222.30), while only a class A misdemeanor, is still considered a "Controlled Substance Offense."

After reviewing the papers submitted upon reargument and reexamining CPL 440.46-a, the court finds that based upon the circumstances presented, the defendant's motion to vacate his judgment of conviction should be granted and the accusatory{**74 Misc 3d at 871} instrument dismissed in the interests of justice. Therefore, it is ordered that defendant's motion for reargument is granted, and upon reargument, his judgment of conviction of criminal possession of marijuana in the second degree (former Penal Law § 221.25), a class D felony, which has since been repealed, is hereby vacated and the accusatory instrument dismissed in the interests of justice.