Justice Richard Lee Price
Garcia moved to vacate his judgment of conviction for criminal possession of a weapon, among other things. He previously argued trial counsel failed to file a timely notice of appeal and erroneously advised him his convictions would not render him eligible for deportation. During the pendency of his coram nobis application to the Appellate Division, which was denied, Garcia filed this motion to vacate arguing he received ineffective assistance of counsel from two attorneys—court-appointed counsel, Sims, and his privately retained attorney, Martindale. Prosecutors argued that as Garcia was ordered deported and returned to the Dominican Republic, his motion should be dismissed as he was no longer within the court’s control or jurisdiction. The court agreed noting motions to vacate required a defendant to comply with the decision of the reviewing court and, if granted, would be restored to a pre-pleading status, thus the court would have neither the authority nor ability to return defendant for further judicial proceedings. It also stated the motion must be denied as Garcia failed to allege sufficient issues of fact as he failed to provide an affidavit from Sims or Martindale. The court stated “there being no reasonable possibility that the allegation is true,” denied Garcia’s motion.
