Lead Opinion
OPINION OF THE COURT
The United States Supreme Court held in Padilla v Kentucky (
L
On April 20, 1995, defendant Roman Baret was indicted on six counts of third-degree sale of a controlled substance (Penal Law § 220.39) and six counts of third-degree possession of a controlled substance (Penal Law § 220.16). He was also charged, while acting in concert with a codefendant, with an additional two counts of third-degree possession and one count of fourth-degree possession (Penal Law § 220.09). On December 23, 1996, defendant pleaded guilty to one count of third-degree sale in exchange for an indeterminate prison term of 2 to 6 years and a recommendation for shock incarceration. The plea fulfilled his part of a “no-split” offer under which his codefendant would plead guilty and receive probatiоn.
During the plea colloquy, defendant admitted to the sale, acknowledged that a guilty plea was the equivalent of a conviction after trial and that, by pleading guilty, he was giving up his rights to remain silent, seek suppression of evidence and present his own evidence at trial. He acknowledged that he could receive between 873 to 25 years in prison if convicted after trial. Defendant assured the judge that no one had forced him to plead guilty, and the judge warned that he was authorized to sentence defendant to the maximum term of incarceration if he failed to return for sentencing.
Defendant, represented by new counsel, subsequently moved to withdraw his plea; he claimed that he had pleaded guilty because of threats made by his codefendant. The judge denied the motion. Defendant then failed to appear for sentencing, and a bench warrant was issued. More than seven years later, on October 20, 2004, he was returned to court involuntarily. On December 20, 2004, the court (a new judge) sentenced defendant to the originally promised sentence of 2 to 6 years’ incarceration.
In December 2010, defendant moved to vacate his conviction pursuant to CPL 440.10 on the ground that defense counsel was ineffective for failing to advise him of the immigration consequences of his guilty plea, entered 14 years earlier. He relied on the Supreme Court’s then-recent decision in Padilla. Defendant claimed that he would have rejected the plea and gone to trial if he had known that, by pleading guilty, he became subject to deportation.
In a decision and order dated March 3, 2011, Supreme Court declined to apply Padilla retroactively to defendant’s claim. The court next concluded that defendant had failed to show that his attorney was otherwise ineffective under Strickland v Washington (
On September 1, 2011, a Justice of the Appellate Division granted defendant’s aрplication for leave to appeal the denial of his CPL 440.10 motion (
Teague established as a guiding principle that new rules of federal constitutional criminal procedure do not apply retroactively to cases that had become final on direct review before the new rule was announced (see Whorton v Bockting,
“[i]n general, ... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final” (489 US at 301 [citations omitted]).
Subsequent decisions defined “dictated by precedent” to mean that the result was “apparent to all reasonable jurists” at the time the defendant’s conviction became final (Lambrix v Singletary,
The Teague court also fashioned two exceptions to this general rule. First, “a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” (
As the Appellate Division acknowledged, we have long considered deportation to be a collateral consequence of a guilty
“Padilla did not establish a new rule under Teague; rather, it followed from the clearly established principles of the guarantee of effective assistance of counsel under Strickland, and merely clarified the law as it applied to the particular facts. Rather than overrule a clear past precedent, Padilla held that Strickland applies to advice concerning deportation, whether it be incorrect advice or no advice at all” (99 AD3d at 409 [internal quotation marks and citations omitted]).
Thus, the court held that Padilla was to be retroactively applied to pleas taken after Congress made “significant changes in immigration law” in 1996,
The Appellate Division issued its decision and order on October 2, 2012. The Supreme Court handed down Chaidez on February 20, 2013. And on June 5, 2013, a Judge of this Court granted the People leave to appeal (
II.
Chaidez
Roselva Chaidez entered the United States from Mexico in 1971 and became a lawful permanent resident in 1977. Chaidez was indicted on three counts of mail fraud because of her involvement in a staged automobile accident insurance scam. On advice of counsel, she pleaded guilty to two counts and was sentenced to four years of probation and ordered to pay restitution. Her conviction became final in 2004. Under federal immigration law, the crimes to which Chaidez pleaded are “aggravated felonies,” and conviction of an aggravated felony is virtually certain to result in deportation (see 8 USC § 1227 [a] [2] [A] [iii]; id. § 1101 [a] [43] [M] [i] [an offense that involves fraud or deceit in which the loss to the victim exceeds $10,000 is an aggravated felony]). According to Chaidez, though, her attorney never advised her of this.
Chaidez later applied for naturalization, which brought her convictions to the attention of federal immigration authorities. They promptly initiated removal proceedings against her. She then sought a writ of coram nobis in federal district court to overturn her 2004 conviction, claiming ineffective assistance of counsel in connection with her decision to plead guilty. Chaidez maintained that she never would have pleaded guilty if her attorney had made her aware of the immigration consequences of such a plea. While the writ was pending, the Supreme Court handed down its decision in Padilla.
Applying Teague, the federal district court held that Padilla did not announce a new rule, but merely applied Strickland to
Writing for a six-Justice majority,
“Padilla did something more. Before deciding if failing to provide such advice fell below an objective standard of reasonableness, Padilla considered athreshold question: Was advice about deportation categorically removed from the scope of the Sixth Amendment right to counsel because it involved only a collateral consequence of a conviction, rather than a сomponent of the criminal sentence? In other words, prior to asking how the Strickland test applied (‘Did this attorney act unreasonably?’), Padilla asked whether the Strickland test applied (‘Should we even evaluate if this attorney acted unreasonably?’). And [because] . . . that preliminary question about Strickland's ambit came to the Padilla Court unsettled[,] . . . the Court’s answer (‘Yes, Strickland governs here’) required a new rule” (id. [internal quotation marks and citation omitted]).
Justice Kagan then considered as “relevant background” the Court’s decision in Hill v Lockhart (
In sum, Justice Kagan concluded, the lower federal and state appellate courts “almost uniformly insisted on what Padilla called the 'categorica[l] remov[al]’ of advice about a conviction’s non-criminal consequences — including deportation — from the Sixth Amendment’s scope”; Padilla was the first case to “reject[ ] that categorical approach — and so [make] the Strickland test operative — when a criminal lawyer gives (or fails to give) advice about immigration consequences”; therefore, Padilla announced a new rule within the meaning of Teague (568 US at —,
III.
Defendant does not regard Chaidez as creating an insuperable obstacle to an affirmance. He asks us to hold that Padilla applies in collateral challenges to convictions in New York courts occurring between 1996, when Congress “severely tightened” immigration laws, and March 31, 2010, when Padilla was handed down, and offers three theories or arguments to support his request: (1) Padilla is a watershed rule of federal constitutional criminal procedure within the meaning of Teague and/or Eastman; or, in light of Danforth we should either (2) interpret Teague more broadly than did the Supreme Court in Chaidez and hold that Padilla is simply an application of Strickland, or (3) apply the three-factor test in People v Pepper (
Danforth
In 1996, a Minnesota jury convicted Danforth of a sex offense involving a six-year-old boy. The victim was ruled incompetent to testify at trial, but the jury saw and heard a videotaped
On appeal to the Minnesota Supreme Court, Danforth for the first time argued that Minnesota courts were free to apply retroactivity more broadly than Teague, and that he was entitled to the benefit of Crawford under state retroactivity principles. He took the position that Teague “dictate[d] the limits of retroactive application of new rules only in federal habeas corpus proceedings and [did] not limit the retroactive application of new rules in state postconviction proceedings” (Danforth v State,
In explaining the decision to grant certiorari in Danforth, the Supreme Court noted that although the Minnesota Supreme Court “correctly concluded that federal law does not require state courts to apply the holding in Crawford to cases that were final when that case was decided” (Danforth,
In so deciding, the Court first summarized the Teague rule as follows:
“New constitutional rules announced by this Court that place certain kinds of primary individual conduct beyond the power of the States to proscribe, as well as ‘watershed’ rules of criminal procedure, must be applied in all future trials, all cases pending on direct review, and all federal habeas corpus proceedings. All other new rules of criminal procedure must be applied in future trials and in cases pending on direct review, but may not provide the basis for a federal collateral attack on a state-court conviction” (id. at 266 [emphasis added]).
Consistent with this formulation, Danforth’s holding derived generally from the notion that Teague was “an exercise of [the] Court’s power to interpret the federal habeas statute” (id. at 278); “was meant to apply only to federal courts considering habeas corpus petitions chаllenging state-court criminal convictions”; and was “justified ... in part by reference to comity and respect for the finality of state convictions [,] . . . considerations . . . unique to federal habeas review of state convictions” (id. at 279).
“[i]t is thus abundantly clear that the Teague rule of nonretroactivity was fashioned to achieve the goals of federal habeas while minimizing federal intrusion into state criminal proceedings. It was intended to limit the authority of federal courts to overturn state convictions — not to limit a state court’s authority to grant relief for violations of new rules of constitutional law when reviewing its own State’s convictions” (id. at 280-281).10
On remand, the Minnesota Supreme Court elected to retain the Teague standard, principally so as not to “ ‘undermine[ ]
Pepper
In People v Samuels (
Seeking a balance between “full retroactive application (permitting a collateral attack on a conviction no longer in normal appellate channels)” and “limit[ing] relief to prospective police conduct or trials” (
“weigh three factors to determine whether a new precedent operates retroactively: the purpose to be served by the new standard; the extent of the reliance by law enforcement authorities on the old standard; and the effect on the administration of justice of a retroactive application of the new standard. The second and third factors are, however, only given substantial weight ‘when the answer to the retroactivity question is not to be found in the purpose of the new rule itself. Thus, where otherwise there could be a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence have been substituted for those in effect at the time of trial’ ” (Policano v Herbert, 7 NY3d 588 , 603 [2006] [citation omitted], quoting Pepper,53 NY2d at 220-221 ).
Observing that we had previously considered “a defendant’s right to counsel in pretrial encounters [to] fall[ ] within a middle ground” such that retroactivity had previously “been limited to those [cases] still on direct review at the time the change in law occurred,” we saw “no reason to depart from that course” (Pepper,
In weighing the three factors, we commented that “uncounseled station house interrogations [do not] necessarily go to the ultimate issue of guilt or innocence, [but] they are not insignificant events”; that “the relatively early terminal point of retroactivity limited to cases young enough to still be on direct appeal militates against the likelihood of prejudicial mildewing of witnesses’ memories”; and that the People could not credibly plead reliance since the holding in Samuels “had been more than foreshadowed” by earlier rulings (id. at 221-222).
Thus, we concluded that the Appellate Division had properly applied Samuels in Pepper’s and Utter’s appeals. Torres, however, was not entitled to benеfit from Samuels because
“[t]he normal appellate process came to an end for him upon the original unconditional denial of his application for leave to appeal to this court. Thereafter, only complete retroactivity could make Samuels applicable. And that, impermissibly, wouldmean that every defendant to whose case it was relevant, no matter how remote in time and merit, would become its beneficiary. Absent manifest injustice, no exception was available to Torres” (id. at 222 [citation and internal quotation marks omitted]).
Eastman
The defendant in Eastman moved pursuant to CPL 440.10 to vacate his judgment of conviction and sentence for murder and a weapon offense on the ground that he had been convicted in violation of federal constitutional law, as announced in the Supreme Court’s then-recent decision in Cruz v New York (
We began our analysis with the observations that “the Supreme Court’s holding in Cruz marks a break from both Federal and State law precedents,” and “[b]ecause Cruz fundamentally alters the Federal constitutional landscape, the principles of retroactivity developеd by the Supreme Court in construing Federal constitutional law govern the disposition of this case” (Eastman,
We concluded first that Cruz stated a new rule within the meaning of Teague as it “unquestionably departs from established precedent, and implicates a bedrock procedural element— the Sixth Amendment right of confrontation” (id. at 276). We then looked at whether Cruz fell within Teague’s exception to non-retroactivity for a watershed rule, and concluded that it did. We reasoned that
“[a]s the rule announced in Cruz is central to an accurate determination of guilt or innocence, the Supreme Court determined that the admission ofthe codefendant’s inculpatory confession against the defendant undermined the fundamental fairness of the trial, where, as here, there was no opportunity for cross-examination to test the reliability of the codefendant’s confession. Therefore, we conclude that retroactive application of Cruz is constitutionally commanded on collateral review of a conviction” (id. [citation omitted]).
Deciding further that the Cruz error was not harmless beyond a reasonable doubt, we reversed the Appellate Division, granted Eastman’s CPL 440.10 motion, vacated his convictions and ordered a new trial.
IV.
Is Padilla a Watershed Rule of Federal Constitutional Criminal Procedure within the Meaning of Teague and/or Eastman ?
Defendant emphasizes that Chaidez argued solely that Padilla was not a new rule; she did not contend, alternatively, that even if the Supreme Court disagreed (as it did), Padilla would qualify for the watershed exception to the non-retroactivity of new rules. Chaidez’s neglect to pursue this tack is not surprising, as the Supreme Court has analogized a watershed rule of federal constitutional criminal procedure to the right to counsel established by Gideon v Wainwright (
As the Supreme Court has more recently recapitulated these requirements: “First, the rule must be necessary to prevent an impermissibly large risk of an inaccurate conviction. Second, the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding” (Whorton,
Finally, in Teague, and repeatedly since, the Supreme Court has emphasized that additional procedural rules of such profound importance are “unlikely ... to emerge” (Teague,
Defendant argues that Padilla fulfills both requirements as a matter of federal and state law. As to the first requirement, he focuses on the notion that noncitizen defendants, particularly those charged with drug offenses, were often “lured into . . . extremely lenient dispositions without knowing the truth — that their convictions will lead to deportation with no remedy, lifetime bars to a green card or citizenship,” and often, with a bit of foresight, their pleas might have been recast to avoid untoward immigration consequences. That a plea bargain may turn out to be far less advantageous than a defendant anticipated, however, does not pose “an impermissibly large risk of an inaccurate conviction” (Whorton,
As for the second requirement, defendant urges that Padilla does, in fact, constitute a bedrock principle akin to Gideon because in the latter, “the defendant was given the right to free counsel and now in Padilla, defendants are given the right to free immigration counsel on their criminal case.” But Padilla
“[w]hen the law is not succinct and straightforward ... a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear” (id. [emphases added and footnote omitted]).
This is a far cry from “the right to free immigration counsel.” And even if Padilla did, in fact, give defendants such a right, immigration advice is not critical to an accurate determination of guilt or innocence.
Finally, defendant argues that Eastman only calls for a new rule to “implicate[ ] a bedrock procedural element,” such as, in that case, the Sixth Amendment right to confrontation (Eastman,
Taking all these considerations into account, we have no doubt that the Supreme Court — if the issue had ever reached
Should we Interpret Teague More Broadly than Did the Supreme Court in Chaidez and Hold That Padilla is Simply an Application of Strickland?
Defendant encourages us to adopt the reasoning of the two-Justice dissent in Chaidez.
This was certainly true in New York. In 1995 we held in Ford that defense counsel were not “under a duty to warn defendants of the possible deportation consequences befоre entering a guilty plea”; and, stated another way, that “the failure of counsel to warn defendant of the possibility of deportation [did not] constitute ineffective assistance of counsel” (Ford,
Does the Three-Part Test in Pepper Make Padilla Retroactive on Collateral Review?
The Pepper factors disfavor retroactivity, too. Under the first and most important factor, “current constitutional standards that go to the heart of a reliable determination of guilt or innocence” will be applied retroactively, but “decisions which
As to the remaining two Pepper factors — i.e., reliance on the old standard and the effect of retroactivity on the administration of justice — here again our decision in Ford looms large. As one defense attorney put it in an affirmation in support of a CPL 440.10 application, he knew that his client was a Mexican national, but “it was [his] practice not to dispense any advice regarding the immigration consequences of entering into a negotiated plea because prevailing Court of Appeals precedent did not require it” (Verdejo,
Accordingly, the Appellate Division’s order should be reversed and the Supreme Court order reinstated.
Notes
. Although the lead opinion in Teague attracted only a four-Justice plurality, a majority of the Court soon adopted its retroactivity analysis (see Penry v Lynaugh,
. This is still the case (see People v Peque,
. The defendant in McDonald relied solely on federal constitutional law (
. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (Pub L 104-132, 110 US Stat 1214 [enacted Apr. 24, 1996]), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (Pub L 104-208, 110 US Stat 3009 [enacted Sept. 30, 1996; eff Apr. 1, 1997]). The Padilla Court referred to the changes to immigration law wrought by AEDPA and IIRIRA as “confirming its] view that, as a
. The parties in Chaidez agreed that neither of the two Teague exceptions to non-retroactivity applied (see Chaidez,
. Justice Thomas, who dissented in Padilla, still considered that case to be “wrongly decided” and so, in his view, the majority’s Teague analysis was “unnecessary” (568 US at —,
“Padilla did nothing more than apply the existing rule oí [Strickland] in a new setting, the same way the Court has done repeatedly in the past: by surveying the relevant professional norms and concluding that they unequivocally required attorneys to provide advice about the immigration consequences of a guilty plea” (id. [Sotomayor, J., dissenting]).
. After Chaidez was decided, the Appellate Division abandoned the reasoning that it had espoused in this case on the ground that “ ‘the principles of retroactivity developed by the Supreme Court in construing Federal constitutional law govern the disposition’ ” of a New York case involving a new rule of federal constitutional criminal procedure (People v Verdejo,
. The Danforth Court expressed no opinion, however, as to whether states are required to retroactively apply any new rules that the federal courts may determine to be watershed rules (see Danforth,
. Of course, whether or not the Teague framework was originally shaped by considerations peculiar to federal habeas review of state court convictions, in Chaidez the Supreme Court applied Teague in a proceeding where federal coram nobis relief was sought (see Chaidez, 568 US at — n 1,
. In his dissenting opinion, which Justice Kennedy joined, Chief Justice Roberts tоok the position that “the retroactivity of new federal rules is a question of federal law binding on States” (
. As Chief Justice Roberts pointed out in his dissent in Danforth, the Supreme Court walked away from Linkletter in two stages. First, in Griffith v Kentucky (
. Reversing our decision in People v Cruz (
. Defendant points out that the Supreme Judicial Court of Massachusetts concluded post-Chaidez that “as a matter of Massachusetts law and consistent with [its] authority as provided in [Danforth], . . . the Sixth Amendment right enunciated in Padilla was not a ‘new’ rule and, consequеntly, defendants whose State law convictions were final after April 1, 1997, may attack their convictions collaterally on Padilla grounds” (Commonwealth v Sylvain, 466 Mass 422, 423-424,
Defendant has also brought to our attention the recent decision of the New Mexico Supreme Court in Ramirez v State (
Dissenting Opinion
(dissenting). A guilty plea by a noncitizen defendant is not knowing and voluntary where the defendant entered the plea unaware that it carried a substantial risk of deportation. This is the case regardless of whether the defendant entered the plea before or after the Supreme Court decided Padilla v Kentucky (
Since 1917, the deportation of noncitizens convicted of crimes of moral turpitude has been authorized (id. at 361). Historically, sentencing judges in both state and federal prosecutions nevertheless retained significant discretion to grant relief from deportation (id. at 361-362). Over time, Congress increased the number of deportable offenses and reduced discretionary relief from deportation (id. at 363-364). In 1996, Congress passed the Antiterrorism and Effeсtive Death Penalty Act (AEDPA) (Pub L 104-132, 110 US Stat 1214) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (Pub L 104-208, 110 US Stat 3009), which “dramatically raised the stakes of a noncitizen’s criminal conviction” by making deportation a practical certainty for a noncitizen who pleads guilty to any of a broad array of offenses (id. at 363-364; see INS v St. Cyr,
Deportation is an unusually serious consequence of pleading guilty, often more serious than the prison sentence imposed. It can banish defendants from the only home they have known and separate them from family and friends. Indeed, it can result in the loss “of all that makes life worth living” (Ng Fung Ho v White,
This Court confirmed that view in its unfortunately timed decision in People v Ford (
In 2013 the Supreme Court decided Chaidez v United States (568 US —,
In 1995, the Court concluded in People v Eastman (
This case presents the Court with its first opportunity after Danforth to clarify whether it will exercise its independent judgment to account for any unique state values and policies in determining the retroactivity of federal rules. The majority declines to do so, instead applying Teague in lockstep with the Supreme Court.
I believe that it is critically important fоr the Court to engage in a more searching retroactivity analysis, particularly where, as here, significant state concerns are at play. New York is home to 12.5% of all lawful permanent residents in the country, the second largest population of any state (Nancy Rytina, Estimates of the Legal Permanent Resident Population in 2012, US Department of Homeland Security, Office of Immigration Statistics, Population Estimates [July 2013], available at http://www.dhs.gov/sites/default/files/publications/ois_lpr_pe_ 2012.pdf). Foreign-born residents make up 22% of New York’s population, nearly twice the national average (United States Census Bureau, State & County QuickFacts: New York, http://quickfacts.census.gov/qfd/states/36000.html). At over three million people, New York City has more foreign-born immigrants than any other city in the country (More Foreign-Born Immigrants Live in NYC Than There are People In Chicago, Huffington Post [Dec. 19, 2013], available at http://www.huffingtonpost.com/2013/12/19/new-york-city-immigrants_n_4475197.html).
The majority’s understanding of the first “watershed” rule requirement, that a new rule “be necessary to prevent an impermissibly large risk of an inaccurate conviction” (Whorton v Bockting,
A plea is an admission of guilt, but it is also a surrender of fundamental constitutional protections. Accordingly, the validity of a plea depends not only upon a defendant’s actual guilt or innocence, but upon whether the plea was knowing and voluntary (Boykin v Alabama,
The Padilla rule goes to the heart of the legal accuraсy of a conviction. Deportation is a consequence “so certain, potentially pivotal and prevalent as to make its disclosure essential to assuring that the guilty plea of a noncitizen is knowing, intelligent and voluntary” (People v Peque,
Padilla also meets the second requirement for a watershed rule. It implicates fundamental fairness and “alter[ed] our understanding of the bedrock procedural element[ ]” of the
The majority fails to recognize the profound meaning of Padilla by gazing down the wrong end of the telescope, claiming it “imposes a relatively modest duty on counsel” (majority op at 797). This is not the appropriate metric for measuring Padilla’s effect on the right to counsel. The measure of Padilla’s significance is the extent to which it altered Sixth Amendment law and whether the rule implicates fundamental fairness (see Whorton,
The majority ultimately finds refuge in the Supreme Court’s assurances that new rules falling within Teague’s watershed exception are unlikely to emеrge (majority op at 796). However, we are not bound by the Supreme Court’s narrow definition of “watershed” rules (see Danforth,
Additionally, I would find the rule retroactive under People v Pepper (
“In the past we have frequently applied the State Constitution ... to define a broader scope of protection than that accorded by the Federal Constitution in cases concerning individual rights and liberties” (People v P.J. Video,
This Court has stated that, under the first factor, new constitutional rules “that go to the heart of a reliable determination of guilt or innocence” will be applied retroactively, whereas rules that “are only collateral to or relatively far removed from the fact-finding process at trial” will not (id. at 221). Our prior focus on the accuracy of the fact-finding process at trial should not restrict us given that we have yet to analyze the retroactivity of a State rule that goes to the heart of the validity of a plea. Just as with the first requirement for a watershed rule under Teague, the narrow focus on factual аccuracy in determining the retroactivity of a rule governing pleas is inappropriate. The relevant inquiry is whether the new rule is necessary as a matter of fundamental fairness to protect the integrity of plea proceedings and to ensure that a defendant’s plea is knowing and voluntary.
The rule that a noncitizen must be informed of the immigration consequences of pleading guilty undeniably is necessary as a matter of fundamental fairness to ensure that a defendant’s plea is knowing and voluntary. Its effect is not indirect — the rule goes to the heart of the validity of a conviction by plea.
The answer to the retroactivity question thus is found in the first factor and consideration of the final two factors is unnecessary. But even if the final two Pepper factors were necessary to the analysis, they would not warrant a different result. This Court’s decision in Ford would seem to have induced little reli
Last, the effect on the administration of justice is speculative. Finality should not weigh heavily in this analysis. In Padilla cases, counsel’s advice will not be on the record, and defendants by necessity can seek relief only in post-conviction CPL 440.10 proceedings. In any event, the majority makes no attempt to quantify the number of defendants who might seek relief under CPL 440.10 were the Padilla rule given retroactive effect. And, in reality, the floodgates argument lacks force, as many affected defendants already have been deported (US Department of Homeland Security, Immigration and Customs Enforcement, FY 2013 ICE Immigration Removals, https://www.ice.gov/removalstatistics/ [reporting over 100,000 interior criminal removals in 2013]).
Padilla expresses a rule of fundamental fairness. Whether that rule should be given retroactive effect implicates basic questions of humanity and justice. This is not a matter to be treated as a sterile question of legal doctrine.
(dissenting). Retroactive application of Padilla v Kentucky (
As the United States Supreme Court has made clear, state courts are not bound by federal decisions governing the non-
Turning to the retroactivity question in this appeal, unlike the Chief Judge, I do not conclude that Padilla announced a watershed rule (see dissenting op at 803) because I do not agree with the majority that Padilla created a new rule of federal constitutional procedure (see majority op at 799). “[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government” (Teague,
New York’s criminal defense bar has long regarded providing advice on the immigration consequences of a guilty plea as part of its professional obligation. Even prior to 1996, when Congress enacted new, draconian immigration laws (see Antiterrorism
Many other organizations joined NYSDA in educating defense lawyers about the immigration consequences of convictions. For example, the Legal Aid Society, New York City’s largest provider of criminal defense services, trained its lawyers on the immigration consequences of crimes. It also continued its decades-long practice of providing immigration advice through in-house specialized attorneys who assist Legal Aid’s criminal defense attorneys. The New York State Bar Association’s standards for defense counsel also reflected the widespread recognition among New York’s defense attorneys that effective representation included advising clients of immigration consequences (see New York State Bar Association, Special Committee to Ensure Quality of Mandated Representation, Standards for Providing Mandated Representation standard I-7 [2005]).
When the members of the bar assume professional obligations and tailor their practice to the realities of their clients’ lives, we should consider Strickland in light of the norms they have established (Chaidez, 568 US at —,
The particularized New York experience illustrates that where the Supreme Court “merely appl[ies] Strickland in a way that
It is true that Padilla rendered Ford invalid, but that is due to Ford’s incorrect application of Strickland, not its use of an erroneous legal standard. Ford relied on federal precedent that held that “the failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel” (see Ford,
Moreover, Ford’s other holding, that deportation is a collateral consequence of a conviction, illustrates the difference between a new rule and the application of established precedent to specific factual scenarios. If the Supreme Court had rejected the binary rule distinguishing between collateral and direct consequences of a guilty plea, which it specifically chose not to do (Padilla,
As Padilla did not announce a new rule, there is no reason to consider its retroactive application under Teague, or for that matter under People v Pepper (
Instead, we must decide whether retroactive application of Padilla serves the state’s interests in the proper, sound, and fair implementation of our criminal justice system. Just treatment of defendants and the public’s confidence in the rule of law should be the primary considerations in a retroactivity analysis. It is these concerns that ensure the integrity of our judicial system and democratic institutions, and they outweigh any costs in lost administrative efficiency.
I agree with the Chief Judge that we must “engage in a more searching retroactivity analysis, particularly where, as here, significant state concerns are at play” (dissenting op at 802). I also agree that, given its significant and diverse immigrant population, New York has unique interests at stake in the retroactive application of Padilla (id.). I would add that New York has critical interests in the proper and fair administration of our state’s criminal justice system, a system characterized by large caseloads and numerous judicial proceedings. In 2013 alone, New York’s criminal courts disposed of 588,848 adult arrests (see New York State Division of Criminal Justice Services, 2009-2013 Dispositions of Adult Arrests, New York State Adult Arrests Disposed, available at http://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/nys.pdf). A criminal justice system that affects that many lives must be able to assure its constituents that every proceeding is fair, and that all defendants are treated justly, rеgardless of immigrant status.
There is no binding or persuasive legal argument against retroactive application of Padilla, and doing so advances our state interests in fairness and justice. Therefore, I dissent.
Order reversed and order of Supreme Court, Bronx County, reinstated.
The percentage of those who are naturalized citizens is increasing — a majority of the foreign-born are now naturalized (Department of City Planning, City of New York, The newest New Yorkers: Characteristics of the City’s Foreign-horn Population [2013 ed], available at http://www.nyc.gov/html/dcp/pdf/census/nny2013/nny_2013.pdf).
. As my analysis focuses on the application of Strickland and the professional norms in New York State, I need not address whether Danforth and Teague foreclose us from determining, as an initial matter, that a Supreme Court decision does not constitute a new rule.
. “[E]ffective . . . representation . . . means, at a minimum: a. Obtaining all available information concerning the client’s background and circumstances for purposes of. . . avoiding, if at all possible, collateral consequences including . . . deportation . . . ; e. Providing the client with full information