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Decided on February 23, 2007
Sullivan County Ct

3179-06
Marvin Newberg, Esq. 33 North Street Monticello, NY 12701 Attorney for Defendant Hon. Stephen F. Lungen Sullivan County District Attorney Sullivan County Courthouse 414 Broadway Monticello, NY 12701 By: Joey Z. Drillings, ADA, of counsel Attorney for the People Hon. Bart Rasnick Town of Fallsburg Justice Court
P.O. Box 830 So. Fallsburg, NY 12779 Frank J. LaBuda, J.
This matter comes on by Appeal of the Decision dated July 12, 2006 by Town Of Fallsburg Judge Bart Rasnick denying defendant's 440.10(h) motion to vacate his 2003 assault conviction.
This Court granted defendant's motion for leave to appeal the Town of Fallsburg Justice Court's 440 Decision dated July 12, 2006 because the issue is compelling but did not grant leave to appeal defendant's 2003 assault conviction as the time to appeal has long since passed.
Defendant submits Appellant Brief. [*2]
The People submit Respondent Brief.
The Town of Fallsburg Justice Court submits a Return On Appeal. Said Return includes

defendant's motion and reply affirmation, the People's affirmation in opposition and the July 12, 2006 Decision from the Justice Court denying the 440 motion. This Court held a fact finding hearing on November 3, 2006. Memorandums of law were submitted by each party thereafter, by direction of this Court, and the matter is fully submitted.
The issue in this appeal is whether the Justice Court was in error when it denied defendant's 440 motion to vacate his plea because his attorney did not advised him that potential deportation was a collateral effect of his plea which rises to ineffective assistance of counsel.
Defendant argues that if he were advised as to potential deportation he would not have pled guilty but, instead, would have gone to trial.
The defendant is an immigrant from El Salvador who has been in United States for fourteen years. He is a hard worker who has been employed by the same company for fourteen years and has risen from entry level laborer to supervisor.
The defendant was a law abiding person until his conviction in April, 2003 for DWAI and the instant assault conviction and sentence in October, 2003. He has had no further arrests to date.
For purposes of this appeal, it was stipulated at this Court's hearing, that defendant's immigration status was not discussed by the defendant or his legal aid attorney on the DWAI case or by the defendant or his retained attorney on the instant assault case. Neither of the attorneys involved nor the defendant himself ever brought up his immigrant status during either of his two criminal matters. Also, since no language interpreter was ever requested, there is no claim of confusion caused by a language barrier.
Defendant did have a retained immigration attorney working on his status for approximately five years at the time of his two criminal matters in 2003. But, there are no allegations that he ever informed his immigration attorney about either of his two criminal cases or asked him if either, or both, might effect his immigration status. Nor are there any allegations that the defendant requested either of his two defense attorneys to contact his immigration attorney.
The defendant applied to the United States Citizenship & Immigration Service (USCIS)for Temporary Protected Status (TPS) and was denied based upon the regulations of the [*3]Immigration & Nationality Act (INA). Said regulations make an immigrant ineligible for TPS if he has been convicted of two or more misdemeanors.
Federal regulations define misdemeanor as any offense that is subject to a penalty of imprisonment for a term of more that five days regardless of the term actually served. See, 8
C.F.R.

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