159 A.D.3d 118
N.Y. App. Div.2018Background
- Defendant (born in Jamaica, immigrated 1994) with long history of mental illness (schizophrenia, delusions); repeatedly found unfit to proceed until medicated.
- After competency certifications in 2013, defendant pleaded guilty to first‑degree sexual abuse pursuant to a plea agreement calling for 5 years imprisonment and 10 years postrelease supervision.
- At plea colloquy the court asked if defendant was a U.S. citizen; defendant answered “Yes,” and defense counsel did not correct him. No Peque warning regarding deportation was given.
- Presentence report (prepared before sentencing) listed defendant as “undocumented.” The sentencing court did not revisit citizenship or give any immigration admonition.
- Defendant was later transferred to ICE custody and challenges his plea on the ground the court failed to give the Peque deportation warning. Appellate Division majority holds appeal in abeyance and remands for a Peque prejudice hearing; one justice dissents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Peque warning was required despite defendant's on‑the‑record statement that he was a U.S. citizen | Court must give Peque warning to all defendants (citizen or noncitizen) because Peque's language is broad and protective of noncitizen rights | Failure to give warning prejudiced defendant because he was noncitizen and later faced ICE action | Majority: Peque warning required and defendant entitled to opportunity to show prejudice — remand for hearing; Dissent: Brazil controls — where defendant affirmatively misrepresents citizenship, no relief. |
| Whether defendant’s psychiatric history and competency findings affected reliability of his citizenship assertion | Mental‑health history and residual delusional thinking undermined reliability of his citizenship claim and warranted probing inquiry | Competency certifications and plea allocution showed defendant was fit and competent; court could rely on his responses | Majority: psychiatric history supports remand for hearing; Dissent: competency findings permit court to rely on defendant’s statement; remand improper. |
| Appropriate remedy/procedure for alleged failure to give Peque warning | Remand for a CPL 440.10 prejudice hearing to allow defendant to show reasonable probability he would have rejected plea if warned | Defendant should have moved in trial court to vacate plea; direct appeal is not the proper vehicle; Brazil bars relief when defendant misrepresents citizenship | Majority: hold appeal in abeyance and remit for a Peque prejudice hearing; Dissent: affirm judgment and require defendant to seek post‑conviction relief if warranted. |
Key Cases Cited
- People v Peque, 22 N.Y.3d 168 (Court of Appeals 2013) (due‑process requires warning to noncitizen pleading to felony that plea may lead to deportation)
- People v Brazil, 123 A.D.3d 466 (1st Dept 2014) (no Peque relief where defendant affirmatively misrepresented U.S. citizenship at plea)
- People v Belliard, 135 A.D.3d 437 (1st Dept 2016) (remand for Peque prejudice hearing where counsel — not defendant — inaccurately told court warning was not applicable)
- People v Lopez, 71 N.Y.2d 662 (Court of Appeals 1988) (standard for when plea voluntariness may be examined on direct appeal)