Lead Opinion
OPINION OF THE COURT
In these criminal appeals, we are called upon to decide whether, prior to permitting a defendant to plead guilty to a felony, a trial court must inform the defendant that, if the defendant is not a citizen of this country, he or she may be deported as a result of the plea. Our resolution of this issue is grounded in the right to due process of law, the bedrock of our constitutional order. That guarantee, most plain in its defense of liberty yet complex in application, requires us to strike a careful balance between the freedom of the individual and the orderly administration of government.
Upon review of the characteristics of modern immigration law and its entanglement with the criminal justice system, a
Because the disposition of these appeals varies with the facts of each one, I begin by reviewing the factual background and procedural history of each case.
People v Peque
Shortly after midnight on June 20, 2009, defendant Peque, a native of Guatemala, was arrested for allegedly raping a bartender in a bathroom stall at an inn. Defendant was later indicted on one count of rape in the first degree (see Penal Law § 130.35 [1]). At arraignment, defendant told the court that he was from Guatemala City and lacked a Social Security number, and during their bail application, the People informed the court that, in prison, defendant had made statements indicating he was in the United States unlawfully.
After a series of later court appearances and plea negotiations, defendant pleaded guilty to first-degree rape in exchange for a promised sentence of a 1772-year determinate prison term to be followed by five years of postrelease supervision. Defendant indicated that he had discussed his plea with his attorney, and when the court asked defendant, “Is there anything at this point in the process that you do not understand,” he replied, via an interpreter, “No, everything is clear.” The court accepted defendant’s guilty plea without advising him that his first-degree rape conviction might result in his deportation because it qualified as a conviction for an “aggravated felony” under federal immigration statutes (see 8 USC §§ 1101 [a] [43] [A]; 1227 [a] [2]).
At sentencing, the court asked defense counsel whether there was “any legal reason sentence should not be pronounced,” and counsel responded, “Not that I’m aware, Judge.” Counsel then stated for the record that defendant was “subject to deportation following the completion of his sentence” and that counsel nonetheless wished for the court “to ratify the sentence as agreed upon.” Counsel also mentioned that he had informed defendant of his “right of access to the Guatemalan consulate,” which defendant had declined to exercise. Defendant, in turn, said, “I
Defendant appealed, asserting that his guilty plea was not knowing, intelligent and voluntary because the trial court had not mentioned the possibility of deportation at the time of the plea. Defendant also claimed that his lawyer had been ineffective for not apprising him that he could be deported if he pleaded guilty. The Appellate Division affirmed defendant’s conviction (
People v Diaz
On the night of October 11, 2006, defendant Diaz, who was a legal permanent resident of the United States originally from the Dominican Republic, was allegedly riding in the back of a taxicab with codefendant Castillo Morales. Police officers stopped the cab and, after searching the back seat, recovered a bag containing a two-pound brick of cocaine. The officers arrested defendant and Morales, and thereafter, both men were indicted on one count of criminal possession of a controlled substance in the first degree (see Penal Law § 220.21 [1]) and one count of criminal possession of a controlled substance in the third degree (see Penal Law § 220.16 [1]).
At a court appearance held for consideration of the People’s bail application, defense counsel opposed setting bail, noting that defendant was not a flight risk because he had a green card. Later, immediately prior to the scheduled start of a suppression hearing, defendant agreed to accept the People’s plea offer of a 2V2-year determinate prison term plus two years of postrelease supervision in exchange for his plea of guilty to third-degree drug possession. After conducting a standard plea allocution, the court said, “And if you’re not here legally or if you have any immigration issues these felony pleas could
Defendant completed his prison term, and upon his release to postrelease supervision, United States Immigration and Customs Enforcement (ICE) initiated proceedings to remove him from the country based on his drug conviction. ICE initially detained defendant pending the outcome of those proceedings. However, defendant appealed his conviction and challenged the validity of his guilty plea, alleging that the court’s failure to warn him of the possibility of deportation rendered his plea involuntary. As a result, ICE conditionally released defendant pending the resolution of his appeal, and he completed his term of postrelease supervision. While his appeal was pending, defendant also moved, pursuant to CPL 440.10, to vacate his conviction on the ground that his attorney had been ineffective for failing to advise him of the immigration consequences of his guilty plea. After a hearing, Supreme Court denied that motion, and the Appellate Division subsequently denied defendant permission to appeal from the hearing court’s decision.
On defendant’s direct appeal, the Appellate Division affirmed his conviction (
People v Thomas
On February 15, 1992, defendant Thomas, a legal permanent resident of the United States originally from Jamaica, was arrested for selling cocaine to two individuals. He was later charged in a superior court information with two counts of criminal sale of a controlled substance in the third degree (see Penal Law § 220.39 [1]).
On February 20, 1992, defendant appeared with counsel in Supreme Court, waived indictment and pleaded guilty to one count of attempted criminal sale of a controlled substance in the third degree. In exchange for defendant’s plea, the court promised to sentence him to 30 days in jail plus five years of probation. However, the court conditioned defendant’s receipt of that sentence upon his return to court for sentencing, abstinence from committing further crimes and cooperation with the Department of Probation. At the plea proceeding, the court asked defendant whether he was a citizen of the United States. Defendant answered that he was not a United States citizen and was from Jamaica.
While defendant was at liberty pending sentencing, he failed to show up for a scheduled court appearance, and the court issued a bench warrant for his arrest. On April 28, 1992, defendant’s attorney appeared in court and gave the trial judge a copy of defendant’s death certificate, which indicated that defendant had committed suicide. The court vacated the bench warrant as abated by death.
About 16 years later, on February 28, 2008, defendant arrived at JFK International Airport and, using an alias, asked customs officials for admission to the United States as a returning lawful permanent resident. A few days later, the United States Department of Homeland Security ran defendant’s fingerprints and discovered his true identity. The Department of Homeland Security notified the People of defendant’s return to the country, and the People then informed the court of this turn of events. The court restored the case to its calendar and issued a bench warrant for defendant’s arrest.
Two days after the issuance of a public notice of the murder of the lawyer who had represented defendant at the time of his plea, defendant moved to withdraw his guilty plea with the as
The trial court denied defendant’s plea withdrawal motion. The court found that defendant’s allegations regarding his attorney’s advice were contradictory and incredible, and that defendant generally lacked credibility because he had absconded and faked his own death. Thus, the court opined, defendant had not credibly established that his attorney’s advice had been deficient at the time of his plea or that he had been prejudiced by his attorney’s allegedly poor performance. Citing Ford, the court concluded that defendant was not entitled to withdraw his plea based on the court’s or counsel’s failure to apprise him of potential deportation. The court then sentenced defendant to an indeterminate prison term of from 2 to 6 years.
Defendant appealed, renewing his complaints about counsel’s advice and the voluntariness of his guilty plea. While defendant’s appeal was pending, the Department of Homeland Security charged him with being subject to removal from the United States based on his conviction in this case. Upon learning of defendant’s appeal, the federal agency amended the charges to seek defendant’s removal based on his failure to disclose his conviction when he applied for an immigrant visa. Defendant was paroled to ICE custody, and an immigration judge later ordered his removal from the country.
Thereafter, the Appellate Division affirmed defendant’s conviction (
A
Each defendant maintains that his guilty plea must be vacated because the trial court did not inform him that his plea would subject him to deportation, thereby failing to provide constitutionally mandated notice of a critically important consequence of the plea. However, before we may reach defendants’ claims, we must determine whether those claims have been preserved as a matter of law for our review (see NY Const art VI, § 3 [a]; CPL 470.05 [2]; People v Hawkins,
Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea on the same grounds subsequently alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10 (see CPL 220.60 [3]; 440.10; People v Clarke,
However, under People v Lopez, where a deficiency in the plea allocution is so clear from the record that the court’s attention should have been instantly drawn to the problem, the defendant does not have to preserve a claim that the plea was involuntary because “the salutary purpose of the preservation rule is arguably not jeopardized” (
Here, in Diaz, the trial court never alerted defendant that he could be deported as a result of his guilty plea. In fact, the court provided defendant with inaccurate advice, as the court implied that defendant’s plea would entail adverse immigration consequences only for someone who was in the country illegally or had existing immigration issues—circumstances which did not apply to defendant. Since defendant did not know about the possibility of deportation during the plea and sentencing proceedings, he had no opportunity to withdraw his plea based on the court’s failure to apprise him of potential deportation. Thus, defendant’s claim falls within Lopez’s and Louree’s narrow exception to the preservation doctrine.
By contrast, in Peque, because defendant knew of his potential deportation, and thus had the ability to tell the court, if he chose, that he would not have pleaded guilty if he had known about deportation, he was required to preserve his claim regarding the involuntariness of his plea.
In Thomas, defendant fully preserved his claim that the trial court should have informed him that he could be deported as a
B
The State and Federal Constitutions guarantee that the State shall not deprive any person of his or her liberty without due process of law (see US Const 14th Amend; NY Const, art I, § 6). To ensure that a criminal defendant receives due process before pleading guilty and surrendering his or her most fundamental liberties to the State, a trial court bears the responsibility to confirm that the defendant’s plea is knowing, intelligent and voluntary (see United States v Ruiz,
A direct consequence of a guilty plea is one “which has a definite, immediate and largely automatic effect on [the] defendant’s punishment” (Ford,
Furthermore, in Ford, this Court held that “[d]eportation is a collateral consequence of conviction because it is a result peculiar to the individual’s personal circumstances and one not within the control of the court system” (Ford,
Here, defendants’ convictions upon their guilty pleas rendered them subject to deportation, and in each case, the trial court did not alert the defendant to that circumstance. Defendants claim that recent changes in federal immigration law have transformed deportation into a direct consequence of a noncitizen defendant’s guilty plea, and that therefore the courts’ failure here to mention the possibility of deportation rendered their pleas involuntary. Defendants thus urge us to overrule so much of Ford as holds otherwise. In opposition, the People maintain that, because federal authorities retain a significant degree of discretion in determining whether to deport a convicted felon, deportation remains a strictly collateral consequence of a guilty
C
As early as the mid-seventeenth century, the Dutch colony that would become New York experienced widespread immigration. By the late 1650s, non-Dutch European immigrants comprised about half the colony’s population, and it appears that there were few, if any, legal restrictions on immigration at that time (see Milton M. Klein et al., The Empire State: A History of New York 45, 49-51 [2001] [hereinafter “Klein”]). This situation essentially continued through British rule of the colony and New York’s early days as a state in post-revolutionary America (see Klein 153-154, 157-159, 308-311). During that span of history, immigrants contributed significantly to the constitutional tradition underlying today’s decision. In the seventeenth century, the original foreign-born colonists brought with them the common-law tradition of individual rights, and in 1821, naturalized immigrants in certain progressive counties of the State provided the population, clout and votes needed to call for a constitutional convention, resulting in New York’s becoming the first state to add a due process clause to its constitution (see J. Hampden Dougherty, Constitutional History of the State of New York 29, 42-43, 97-99 [1915]; Peter J. Galie & Christopher Bopst, The New York State Constitution 68-69 [2d ed 2012]).
Immigration laws began to change in the mid-nineteenth century. Prior to that time, New York City modestly regulated immigration, imposing various capitations on merchant ship-masters who transported impoverished immigrants to this country by sea and requiring those shipmasters to report certain identification information about their immigrant passengers to the Mayor (see Hidetaka Hirota, The Moment of Transition: State Officials, the Federal Government, and the Formation of American Immigration Policy, 99 J Am Hist 1092, 1095 [2013] [hereinafter “Hirota”]; see also Henderson v Mayor of New York,
Even after the onset of federal regulation of immigration, removal from the country was largely discretionary and relatively uncommon. When Congress passed the Immigration Act of 1917, it authorized for the first time the deportation of noncitizens who had been convicted of crimes of “moral turpitude” and had served a sentence of a year or more in prison (39 US Stat 874, 889-890 [1917]). Under the 1917 Act, a state sentencing court had discretion to grant a noncitizen defendant a judicial recommendation against deportation, or JRAD, which prevented the federal government from deporting the defendant (see 39 US Stat at 889-890). New York officials also saw fit to extend discretionary relief to alien convicts to prevent their deportation. As noted in the Poletti Committee’s report in preparation for the State’s constitutional convention of 1938, the Governor would sometimes, where the facts warranted it, pardon a prisoner to “restore citizenship ... or to prevent deportation or to permit naturalization” (Problems Relating to Executive Administration and Powers, 1938 Rep of NY Constitutional Convention Comm, vol 8 at 66 [1938]).
Executive discretion in the immigration field, however, did not remain untrammeled for long. By successive revisions to the Immigration and Nationality Act (INA) in 1952 and 1990, Congress first curtailed and then eliminated the availability of JRADs, while preserving the United States Attorney General’s discretion to grant relief from deportation (see 66 US Stat 163, 201-208 [1952]; 104 US Stat 4978, 5050-5052 [1990]). In 1996, Congress finally stripped the Attorney General of his discretion to prevent a noncitizen defendant’s deportation (see 110 US Stat 3009-546, 3009-567, 3009-594, 3009-596, 3009-597 [1996]). And, under the current version of the INA, an alien may be deported for a wide array of crimes, including most drug offenses, “aggravated felonies,” domestic violence crimes, and any crime for which a sentence of more than a year is authorized (see 8 USC §§ 1101 [a] [43]; 1227 [a] [2]). Therefore,
“[u]nder contemporary law, if a noncitizen has committed a removable offense after the 1996 effectivedate of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses” (Padilla, 559 US at 363-364 ; see generally 8 USC § 1227; 110 US Stat 1214 [1996]).
Changes in immigration enforcement have also increased the likelihood that a noncitizen defendant will be deported after a guilty plea. For example, at the time of the passage of the 1996 amendments to the INA, the number of annual deportations resulting from criminal convictions stood at 36,909 (see Department of Homeland Security, 1996 Yearbook of Immigration Statistics, Annual Report on Immigration Enforcement Actions at 171 [1997], available at http://www.dhs.gov/archives [accessed Sept. 18, 2013]). Thereafter, the federal government deported an ever-growing number of individuals each year, and in 2011, the United States removed 188,382 noncitizens based on their criminal convictions (see Department of Homeland Security, 2011 Yearbook of Immigration Statistics, Annual Report on Immigration Enforcement Actions at 5-6 [2012], available at http:// www.dhs.gov/sites/default/files/publications/immigrationstatistics/enforcement_ar_2011.pdf [accessed Sept. 18, 2013]; see also Douglas S. Massey & Karen A. Pren, Unintended Consequences of US Immigration Policy: Explaining the Post-1965 Surge from Latin America, 38 Population & Dev Rev [Issue 1] 1, 15-16 [2012]). And, since 1995, the Institutional Removal Program, a joint initiative of New York and federal authorities, has enabled New York to transfer thousands of convicted foreign-born criminals from state custody to ICE custody prior to the expiration of their prison terms (see Correction Law § 5 [4]; Executive Law § 259-i [2] [d] [i]; New York State Department of Corrections and Community Supervision, Research Report: The Foreign-Born under Custody Population and the IRP at 1, 9-11 [2012], available at http://www.doccs.ny.gov/ Research/Reports/2013/ForeignBorn_IRP_Report_2012.pdf [accessed Sept. 18, 2013]; see also brief of Immigrant Defense Project, as amicus curiae, at 15-20).
Present-day immigration law and enforcement practice impose what can only be described as an enormous penalty upon noncitizen convicts. Once state and federal authorities identify a defendant as a potentially removable alien, ICE may detain the defendant until administrative or judicial review
Of course, a convicted noncitizen defendant’s actual removal from the country exacts the greatest toll on the defendant and his or her family. Once the federal government forces the defendant beyond our borders, the defendant loses the precious rights and opportunities available to all residents of the United States. After being removed from the country, the defendant rarely, if ever, has further in-person contact with any family members remaining in America. Additionally, deportation effectively strips the defendant of any employment he or she had in this country, thus depriving the defendant and his or her family of critical financial support. And, the defendant must begin life anew in a country that, in some cases, is more foreign to the defendant than the United States.
Specifically, the Court held that, because deportation is so closely related to the criminal process and carries such high stakes for noncitizen defendants, a defense attorney deprives a noncitizen defendant of his or her Sixth Amendment right to the effective assistance of counsel by failing to advise, or by misadvising, the defendant about the immigration consequences of a guilty plea (see
In determining whether the Supreme Court’s discussion of the character of deportation holds true for due process purposes, it is necessary to account for the distinct nature of the right to due process and the right to the effective assistance of counsel at issue in Padilla. Although both of those rights exist to preserve the defendant’s entitlement to a fair trial or plea proceeding, they operate in discrete ways in the plea context. The right to effective counsel guarantees the defendant a zealous advocate to safeguard the defendant’s interests, gives the defendant essential advice specific to his or her personal circumstances and enables the defendant to make an intelligent choice between a plea and trial, whereas due process places an independent responsibility on the court to prevent the State from accepting a guilty plea without record assurance that the
Nonetheless, the Padilla Court’s factual observation about the nature of deportation rings true in both the due process and effective assistance contexts; it is difficult to classify deportation as either a direct or collateral consequence of a noncitizen defendant’s guilty plea.
However, under current federal law, deportation is a virtually automatic result of a New York felony conviction for nearly every noncitizen defendant (see Padilla,
We have previously contemplated the existence of such a peculiar consequence of a guilty plea, though we had not actually encountered one until now. And, in prior decisions, we discussed how a trial court must address these most uncommon consequences at a plea proceeding. Particularly, we stated that there may be a “rare” case where a court must inform the defendant of “a consequence that, although collateral for purposes of due process, was of such great importance to him that he would have made a different decision had that consequence been disclosed” (Gravino,
As discussed, deportation is an automatic consequence of a guilty plea for most noncitizen defendants; absent some oversight by federal authorities, a defendant duly convicted of almost any felony will inevitably be removed from the United States. Unlike SORA registration, SOMTA confinement or other collateral consequences, the deportation process deprives the defendant of an exceptional degree of physical liberty by first detaining and then forcibly removing the defendant from the country. Consequently, the defendant may not only lose the blessings of liberty associated with residence in the United States, but may also suffer the emotional and financial hardships of separation from work, home and family. Given the severity and inevitability of deportation for many noncitizen defendants, “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes” (Padilla,
But, the People protest, that is not the case. In their view, deportation remains a strictly collateral consequence of a guilty plea, about which a trial court has no duty to inform a defendant. They observe that ICE retains considerable discretion to decline to enforce federal immigration laws against any particular defendant, making deportation such an uncertain outcome that the court should never be compelled to notify a defendant of the possibility of it. However, the roughly 188,000 noncitizen convicts who are deported each year would probably beg to differ on this point, and rightly so. After all, although New York courts have no role in ICE’s enforcement decisions, they do render judgments of conviction which routinely ensure the defendants’ eventual transfer, by way of state correctional authorities, into federal custody, where they will almost certainly be deported. At bottom, the factors cited by the People merely show that deportation does not fit squarely within the direct consequences mold. Although that is true, fundamental fairness still requires a trial court to make a noncitizen defendant aware of the risk of deportation because deportation frequently results from a noncitizen’s guilty plea and constitutes a uniquely devastating deprivation of liberty.
The People assure us there is no need for the trial court to tell a noncitizen defendant about the possibility of deportation because Padilla now requires defense counsel to provide a noncitizen defendant with specific and detailed advice about a guilty plea’s impact on his or her immigration status. However, “assuming defense counsel ‘will’ do something simply because it is required of effective counsel” is “an assumption experience does not always bear out” (Moncrieffe v Holder, 569 US —, —,
In short, Chief Judge Lippman, Judges Graffeo, Read, Rivera and I conclude that deportation constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to a defendant as a matter of fundamental fairness.
Because the Court’s conclusion regarding a trial court’s duty is at odds with Ford’s pronouncement that a court’s failure to warn a defendant about potential deportation never impacts the validity of the defendant’s guilty plea, that aspect of Ford must be reexamined in light of the doctrine of stare decisis.
“Stare decisis is the doctrine which holds that common-law decisions should stand as precedents for guidance in cases arising in the future” and that a rule of law “once decided by a court, will generally be followed in subsequent cases presenting the same legal problem” (People v Damiano,
Under stare decisis principles, a case “may be overruled only when there is a compelling justification for doing so” (People v Lopez,
As noted above, in Ford, we concluded that, because deportation was a collateral consequence of a guilty plea, the trial court did not have to advise the defendant of the possibility of deportation during the plea allocution (see
“Deportation is a collateral consequence of conviction because it is a result peculiar to the individual’s personal circumstances and one not within the control of the court system. Therefore, our Appellate Division and the Federal courts have consistently held that the trial court need not, before accepting a plea of guilty, advise a defendant of the possibility of deportation. We adopt that rule and conclude that in this case the court properly allocuted defendant before taking his plea of guilty to manslaughter in the second degree.” (Id. [citations omitted].)
Thus, we determined, “The [plea] court was under no obligation to inform the defendant of any possible collateral consequences of his plea, including the possibility of deportation, nor was defendant denied effective assistance of counsel” due to counsel’s lack of advice on the subject (id. at 405). Accordingly, Ford rested largely on the weight of authority at the time, i.e., prior to the 1996 amendments to the INA, which held deportation to be a collateral consequence of a guilty plea (see e.g. United States v Parrino, 212 F2d 919, 921-922 [2d Cir 1954]).
However, the weight of authority and the will of Congress have shifted since our decision in Ford. To the extent Ford stands for the proposition that the court’s complete omission of any discussion of deportation at the plea proceeding can never render a defendant’s plea involuntary, that discrete portion of our opinion in Ford “no longer serves the ends of justice or withstands the cold light of logic and experience” (Policano,
In taking this extraordinary step, Judges Graffeo, Read and I do not treat as inconsequential the considerable reliance which Ford’s assessment of deportation has engendered among prosecutors and trial courts throughout the State. Certainly, our repeated approving citations of Ford provided no reason to doubt the continued vitality of its pronouncement with respect to the immigration consequences of a guilty plea. So, too, we are mindful that Ford’s discussion of deportation reinforced the repose afforded to the People by a noncitizen defendant’s guilty plea. And, for nearly two decades, trial courts have relied on Ford’s characterization of deportation as a collateral consequence of a plea to avoid potentially time-consuming litigation regarding the possibility of deportation. However, those significant reliance interests cannot overcome the fundamental injustice that would result from completely barring a noncitizen defendant from challenging his or her guilty plea based on the court’s failure to advise the defendant that he or she might be deported as a result of the plea.
To avoid any confusion about the scope of our decision, we emphasize that it is quite narrow. Nothing in this opinion should be construed as casting doubt on the long-standing rule that, almost invariably, a defendant need be informed of only the direct consequences of a guilty plea and not the collateral consequences. We continue to adhere to the direct/collateral framework, and we do not retreat from our numerous prior decisions holding a variety of burdensome consequences of a guilty plea to be strictly collateral and irrelevant to the voluntariness of a plea (see Monk,
As the Court
The trial court must provide a short, straightforward statement on the record notifying the defendant that, in sum and substance, if the defendant is not a United States citizen, he or she may be deported upon a guilty plea. The court may also wish to encourage the defendant to consult defense counsel about the possibility of deportation. In the alternative, the court may recite the admonition contained in CPL 220.50 (7) that “if the defendant is not a citizen of the United States, the defendant’s plea of guilty and the court’s acceptance thereof may result in the defendant’s deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States.” Again, these examples are illustrative, not exhaustive, of potentially acceptable advisements regarding deportation.
F
As explained above, a majority of the Court, including Chief Judge Lippman, Judges Graffeo, Read, Rivera and me, concludes that due process requires a trial court to warn a defendant that, if the defendant is not a citizen of this country, the defendant may be deported as a result of a guilty plea to a felony. A separate majority of the Court, comprised of Judges Graffeo, Read,
The failure to apprise a defendant of deportation as a consequence of a guilty plea only affects the voluntariness of the plea where that consequence “was of such great importance to him that he would have made a different decision had that consequence been disclosed” (Gravino,
Chief Judge Lippman, with whom Judge Rivera joins, maintains that we are unfaithful to our Catu line of cases because we do not mandate automatic vacatur of a plea as the result of the court’s failure to mention the possibility of deportation at the plea allocution (see Lippman, Ch. J., dissenting op at 209-212; see also op of Rivera, J., at 218-219). However, we are simply adhering to Gravino and Harnett, not departing from Catu. Gravino and Harnett make clear that when a uniquely significant plea consequence, while technically collateral, impacts the voluntariness of a defendant’s plea, the defendant may receive his plea back only upon a showing of prejudice (see Harnett,
In the Chief Judge’s view, we are “telescoping]” the remedy for a due process violation and the ineffective assistance of counsel (Lippman, Ch. J., dissenting op at 211). But, to the extent our remedial approach to the instant appeals resembles the remedy for an attorney’s constitutionally deficient performance, that makes eminent sense because, as we have previously observed, “the issue of whether [a] plea was voluntary,” a matter of core concern for due process purposes, “may be closely linked to the question of whether a defendant received the effective assistance of counsel” (Harnett,
G
As previously noted, defendant Peque did not preserve his claim that his plea was involuntary, and therefore we consider the application of the principles delineated above only in Diaz and Thomas.
In Diaz, the trial court clearly failed to tell defendant that he might be deported if he pleaded guilty. Thus, if defendant has been prejudiced by that error, he is entitled to vacatur of his plea. Given that Supreme Court did not address the deficiency in the plea allocution at all, much less assess prejudice, defendant is entitled to a remittal to that court to allow him to move to vacate his plea and develop a record relevant to the issue of prejudice. Likewise, in future cases of this kind, where the deficiency in the plea allocution appears on the face of the record, the case should be remitted to the trial court to allow the defendant to file a motion to vacate the plea. Upon a facially sufficient plea vacatur motion, the court should hold a hearing to provide the defendant with an opportunity to demonstrate prejudice. In the instant case, if defendant can demonstrate that he
Unlike defendant Diaz, however, defendant Thomas cannot obtain relief based on the trial court’s plea allocution in his case. Specifically, defendant Thomas’s challenge to the voluntariness of his plea must be evaluated in light of the practical and legal relationship between a criminal conviction and deportation at the time he pleaded guilty in 1992. As discussed in detail above, at that time, deportation was a far less certain consequence of most defendants’ guilty pleas because the federal government deported far fewer convicts and possessed far broader discretion to allow them to remain in the United States. Indeed, in acknowledgment of the federal government’s broad discretion and latitude pertaining to deportation of immigrants around the time of defendant’s plea, this Court and many federal courts recognized the strictly collateral nature of the immigration consequences of a guilty plea and held that a trial court did not have to advise a noncitizen defendant that his or her plea might subject the defendant to deportation (see e.g. Ford,
m
Relying on Padilla, defendants Peque and Thomas additionally contend that their attorneys were ineffective for failing to tell them that their guilty pleas could result in deportation.
In Peque, the plea and sentencing minutes do not reveal whether defense counsel misadvised or failed to advise defendant about the possibility of deportation before he pleaded guilty. At sentencing, counsel stated that defendant would be subject to deportation as a result of his plea and that counsel had informed defendant of his right to access the Guatemalan consulate, thereby indicating that counsel may have advised defendant on those matters prior to his plea. In light of the record evidence tending to contradict defendant’s current complaints about his lawyer, it was incumbent on defendant to substantiate his allegations about counsel’s advice below by filing a CPL 440.10 motion, and his failure to file a postjudgment motion renders his claim unreviewable (see Haffiz,
In Thomas, the limited record here and the trial court’s credibility determinations doom defendant’s claim. The record of the plea proceeding does not reveal whether defense counsel apprised defendant of the immigration consequences of his guilty plea. In support of his plea withdrawal motion, defendant averred that counsel had spoken with him about the immigration consequences of his plea and had misled him on that score, thus belying his current assertion that counsel completely failed to advise him about immigration issues. Additionally, defendant’s newly retained attorney did not have personal knowledge of his prior counsel’s advice, and therefore new counsel’s allegation that predecessor counsel had failed to advise defendant about deportation did not reliably establish the nature of predecessor counsel’s advice. Furthermore, the court did not abuse its discretion by discrediting defendant’s contradictory allegations about counsel’s performance (see People v Baret,
IV
Accordingly, in People v Diaz, the order of the Appellate Division should be modified by remitting the matter to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed. In People v Peque and People v Thomas, the order of the Appellate Division should be affirmed.
Notes
. Judge Pigott, in an opinion joined by Judge Smith, dissents from the Court’s due process holding and concludes that a defendant has only a Sixth Amendment right to advice from counsel concerning deportation, but does not have a due process entitlement to a warning about the possibility of deportation from the trial court (see dissenting in part op at 204-205). While Judge Smith agrees with Judge Pigott that the court’s failure to warn a defendant about the possibility of deportation does not implicate due process, he nonetheless agrees with Judges Graffeo, Read and me to the extent that, if this were indeed a failure to mention a particularly unique and significant plea consequence in violation of a due process obligation as described by the Court today, the appropriate remedy would be remittal to the trial court to afford the defendant an opportunity to demonstrate prejudice and not automatic vacatur of the plea. Thus, Judge Smith concurs that, given the majority’s view that there has been a due process violation, the appropriate remedy in People v Diaz is a remittal to allow defendant to show prejudice.
. In a dissenting opinion in which Judge Rivera largely concurs, Chief Judge Lippman determines that Ford’s analytical framework regarding plea
. In their respective opinions, the Chief Judge and Judge Rivera disagree with the Court’s conclusion that defendant Peque had to preserve his claim and failed to do so, and therefore they do not join in this section of our opinion with respect to Peque (see Lippman, Ch. J., dissenting op at 216; see also op of Rivera, J., at 218-219 n).
. We commend the defendants’ attorneys, the prosecutors and counsel for amicus for their excellent work in bringing a wealth of authorities, research, data and scholarly articles to our attention to assist us in our resolution of these appeals.
. Chief Judge Lippman and Judge Rivera conclude that the direct/ collateral framework does not apply to deportation, and that regardless of deportation’s particular classification as a plea consequence, it is sufficiently important to warrant the court’s advisement on the matter (see Lippman, Ch. J., dissenting op at 207, 208-209; see also op of Rivera, J., at 219). Accordingly, they do not agree with us that deportation is a technically collateral consequence of a guilty plea, and they do not join this opinion to the extent it contradicts the views expressed in their respective opinions.
. Judges Pigott and Smith agree that deportation is not a direct consequence of a guilty plea, but they would go further and hold that deportation is a strictly collateral consequence of a guilty plea, such that a trial court’s failure to mention deportation can never invalidate a guilty plea (see Pigott, J., dissenting in part op at 204-205). As already noted, Chief Judge Lippman and Judge Rivera find the distinction between direct and collateral consequences to be inapplicable to this case. Accordingly, with the exception of the Chief Judge’s and Judge Rivera’s concurrence in the last paragraph of this section of this opinion regarding the necessity of a trial court’s advisement about deportation, those four Judges do not join the remainder of this section.
. Chief Judge Lippman and Judge Rivera concur in the Court’s decision to overrule this specific portion of Ford’s holding, but unlike a majority of this Court, comprised of Judges Graffeo, Read, Smith, Pigott and me, they doubt the validity of our precedents following Ford (compare Lippman, Ch. J., dissenting op at 211 [stating that Ford “is in its two principal holdings, if not in its ratio decidendi, no longer viable”], with Pigott, J., dissenting in part op at 205 [“creat(ing) no new law”]). Therefore, the Chief Judge and Judge Rivera do not join the remainder of this section of this opinion.
. The Court here refers to Chief Judge Lippman, Judges Graffeo, Read, Rivera and me.
. Given that defendants were convicted of felonies here, we have no occasion to consider whether our holding should apply to misdemeanor pleas.
. Again, Judge Smith does not concur in the Court’s due process holding, but rather concurs only in the remedy which this opinion specifies in light of that holding.
. Judge Pigott’s opinion dissenting in part reaches “a very similar conclusion” to our own and “would create no new law” (Pigott, J., dissenting in part op at 205), but the dissent faults us for, in its view, implicitly “contradict[ing]” our decisions in Gravino and Harnett (id. at 205) and failing to provide noncitizen defendants with any practical benefit beyond that to which they are already entitled under Padilla (id. at 206). But, as stated at length above, our decision does nothing to disturb Gravino, Harnett or our settled jurisprudence in this area; as was the case with SORA registration or SOMTA confinement at issue in those decisions, the direct or collateral character of deportation, and the necessity of the trial court’s advice with respect to it, depends on its particular qualities.
In addition, our decision here provides noncitizen defendants with a significant practical benefit in addition to Padilla’s mandate. After all, a defendant challenging his plea under Padilla must possess an adequate record of both counsel’s deficient performance and prejudice, and because counsel’s advice or omissions with respect to the immigration consequences of a plea are often outside the record on direct appeal, the defendant must usually resort to a postjudgment motion to satisfy the performance prong of Padilla, not to mention the prejudice prong. By contrast, the defendant may raise a due process claim on direct appeal based on the court’s failure to mention deportation as a consequence of the plea, which will be apparent on the face of the record. Thus, the defendant will be entitled to a remittal to attempt to establish prejudice stemming from the readily apparent error. So, too, in some cases, the record on direct appeal may revestí factors which would have strongly compelled the defendant to reject the plea in an effort to avoid deportation, and thus the defendant could establish prejudice for due process purposes on direct appeal, without remittal, even though he could not show that his attorney was ineffective under Padilla. Indeed, there may be a variety of cases involving an ineffective assistance claim under Padilla and a due process
. In light of our conclusion that a trial court’s failure to inform a defendant of potential deportation may render his or her guilty plea involuntary under certain circumstances, CPL 220.50 (7) cannot be read to deny vacatur of a plea when due process commands that relief. Rather, the statutory language stating that the court’s failure to inform the defendant of potential deportation “shall not be deemed to affect the voluntariness of a plea of guilty” (id. [emphasis added]) can be plausibly read as an instruction to the court that it may not automatically “deem” the plea to be invalid based on the court’s inadequate advice alone but rather must determine whether the defendant has been prejudiced before concluding that the plea was in fact involuntary. Indeed, we adopt this interpretation in large part to avoid constitutional concerns (see Tauza v Susquehanna Coal Co.,
. As mentioned above, defendant Diaz previously filed a CPL 440.10 motion seeking relief under Padilla, and Supreme Court denied the motion because defendant did not establish that he was prejudiced by his attorney’s failure to inform him that his guilty plea could lead to his deportation. Notably, though, the Appellate Division denied defendant permission to appeal from the lower court’s decision, and therefore we have no occasion to consider the denial of defendant’s postjudgment motion in determining whether he should be granted relief on direct appeal. Furthermore, the People do not argue that the court’s rejection of defendant’s claim under Padilla should estop him from seeking to establish that the court’s failure to warn him about potential deportation caused him prejudice. Accordingly, on these specific facts, defendant’s prior postjudgment motion does not warrant an affirmance of his conviction without a remittal.
. Because Chief Judge Lippman would reverse Peque’s and Thomas’s convictions on due process grounds, he does not express any view of their ineffective assistance claims. For the same reason, Judge Rivera does not address Peque’s ineffective assistance claim, but she concurs with the Court’s disposition of Thomas’s due process and ineffective assistance claims (see op of Rivera, J., at 218).
. Defendant Peque also asks us to reduce his sentence as a matter of discretion in the interest of justice. However, because defendant received a lawful and statutorily authorized sentence in this noncapital case, his claim is beyond our purview, as only an intermediate appellate court is authorized to grant the discretionary sentencing relief which he seeks (see CPL 470.15 [6] [b]; People v Discala,
Concurrence Opinion
(concurring in People v Peque and People v Thomas, and dissenting in People v Diaz).
I
In my view, the majority (for want of a better word), seeking a middle ground between the diametrically opposed positions of
I would take a more straightforward approach. Deportation is a collateral consequence of a guilty plea, as the remedial majority concedes. We can infer from this that a defendant has no constitutional right to be informed by a state trial court judge of the possibility that the federal government may deport him or her.
In short, I would reach a very similar conclusion to the remedial majority’s, and, like the remedial majority, I would create no new law, but I would follow a far more direct path, based strictly on Padilla. The remedial majority’s analysis gives defendants no practical benefit that Padilla does not already give them.
II
Another, equally fundamental weakness affects the “majority” opinion. The majority comprised of Chief Judge Lippman, and Judges Graffeo, Read, Rivera and Abdus-Salaam does not agree on a rationale for its due process holding. Although Judge Abdus-Salaam does not say so expressly, no precedential analysis emerges from her opinion.
Judges Graffeo, Read and Abdus-Salaam “reaffirm! ] the central holding of [People v] Ford [(
So far, I have no quarrel; Judge Smith and I agree with Judges Graffeo, Read and Abdus-Salaam that deportation is a collateral consequence of a guilty plea. However, the plurality consisting of Judges Graffeo, Read and Abdus-Salaam (see op of Abdus-Salaam, J., at 191-192) then attempts to treat deportation as a sui generis consequence that is at once collateral and uniquely significant. In doing so, the plurality fails to do justice to the severity of collateral consequences such as SORA registration and SOMTA confinement. A person who has been civilly confined, possibly for the rest of his life, under Mental Hygiene Law article 10, would be surprised to learn that three members of our Court believe that he has not been “ deprive [d] ... of an exceptional degree of physical liberty” (op of Abdus-Salaam, J., at 192). In my view, the plurality’s position contradicts our holdings in People v Gravino (
I agree that the Appellate Division orders in People v Peque and People v Thomas should be affirmed. However, with respect to People v Diaz, I do not agree that “the trial court clearly failed to tell defendant that he might be deported if he pleaded guilty” (op of Abdus-Salaam, J., at 200), the view taken by Chief Judge Lippman, and Judges Graffeo, Read, Rivera and Abdus-Salaam. Supreme Court told Diaz, “if you’re not here legally or if you have any immigration issues these felony pleas could adversely affect you” (emphasis added), and the court elicited an acknowledgment that Diaz understood this. Although Diaz was a legal permanent resident of the United States, he was not a citizen. As such, he was not able to vote in United States elections, or remain outside the United States for lengthy periods of time, without running the risk of his permanent residency being deemed abandoned. In the circumstances, I believe that the reference to “immigration issues” was sufficient to make Diaz aware that the trial court’s warning applied to him. It might have been preferable for Supreme Court to advise Diaz that, even if he was in the United States legally, a guilty plea might result in his deportation if he was not a United States citizen. But I cannot accept that, as a matter of law, Supreme Court’s words implied that a guilty plea would not entail adverse immigration consequences for Diaz.
IV
Nor should Diaz be permitted a second bite of the apple. Supreme Court denied Diaz’s CPL 440.10 motion, agreeing with Diaz that his defense attorney had been ineffective, but holding that Diaz had not met his burden of showing prejudice, i.e. showing that he would not have pleaded guilty if warned by counsel of the risk of deportation. The Appellate Division denied Diaz leave to appeal Supreme Court’s order, and consequently the proceeding did not reach us. Now the remedial majority remits the direct appeal to the trial court to, once again, “allow [defendant] to move to vacate his plea and develop a record relevant to the issue of prejudice” (op of Abdus-Salaam, J, at 200). But Diaz has already had his 440.10 proceeding (see id. at 179), and failed to establish any prejudice. It is therefore difficult to see what proceeding the remedial majority imagines should now occur.
For these reasons, I cannot join Judge Abdus-Salaam’s opinion. I would affirm in all three appeals (but see People v Hernandez,
Such a warning is required by a statute, CPL 220.50 (7), which courts should, of course, follow, even if failure to do so is not reversible error. The statute was added
“as a component of budget legislation designed to reduce prison population by facilitating deportation of convicted felons who are not citizens of the United States. The admonition the court is required to impart ... is aimed at diluting the effectiveness of arguments made by aliens at deportation hearings that they would not have pleaded guilty had they known the conviction would result in loss of the privilege of remaining in this country” (Peter Preiser, McKinney’s Cons Laws of NY, Book 11 A, CPL 220.50 at 167).
Dissenting Opinion
(dissenting). I respond to the opinion subscribed to by three Judges, whom I refer to as the plurality, because that is the only writing offering reasons for the results announced in the above-captioned appeals. Although I would join a writing finding a due process entitlement on the part of a noncitizen defendant to be advised by the court of the possible immigration consequences of pleading guilty and making relief available when that entitlement is not honored, the plurality opinion does not meet the latter condition and I accordingly do not join it. I do, however, agree with the Judges who have signed the plurality opinion and with Judge Rivera, that deportation is such an important plea consequence that “it must be mentioned by the trial court to a defendant as a matter of fundamental fairness” (plurality op at 193).
The United States Supreme Court acknowledged in Padilla v Kentucky (
The question now presented is whether, after Padilla, the description of deportation as a direct or a collateral plea consequence retains viability as a means of defining, not counsel’s, but the court’s duty in assuring the voluntariness of a plea. The plain answer to this question must be that it does not. If deportation is “uniquely difficult to classify as either a direct or a collateral consequence,” logically it is so for all purposes, not simply for the purpose of determining what advice counsel must give in satisfaction of the Sixth Amendment requirement of effective representation.
Once it is settled that the relevant inquiry is not whether deportation may be formally categorized as a direct or collateral consequence, but whether it is, as the Padilla Court observed, 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, it should be clear that the court’s allocutional obligations in taking a noncitizen’s plea are fully implicated. The realities shaping the court’s obligations, with respect to the conviction consequence of deportation, are not essentially different from those to which counsel must be responsive in advising a noncitizen defendant.
It is by now practically self-evident that the judicial obligation in taking a plea—i.e., assuring on the record that the defendant fully understands what the plea connotes and its consequences (see Boykin v Alabama,
If a plea proceeding fails of its essential purpose—if it does not create a record from which the knowing and voluntary nature of the defendant’s waiver and concomitant choice between available alternative courses of action may be readily understood—the plea is infirm. And, in that case, the appropriate response is to permit the plea’s withdrawal, not to cast about for a means of deeming the infirmity harmless (see McCarthy v United States,
“Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction. The refusal of the trial court and Appellate Division to vacate defendant’s plea on the ground that he did not establish that he would have declined to plead guilty had he known of the postrelease supervision was therefore error (see also People v Coles, 62 NY2d 908 , 910 [1984] [‘harmless error rules were designed to review trial verdicts and are difficult to apply to guilty pleas’]).
“In light of this result, we do not reach defendant’s alternative claim of ineffective assistance of counsel” (id. at 245 [emphasis supplied]).
The Court’s
The delicacy with which the plurality treats People v Ford (
The plurality does not, however, eschew the remedial path hypothetically sketched in Gravino (
Today’s plurality decision speaks eloquently of the severity of deportation as a conviction consequence (plurality op at 192-193), but in the end treats removal as just another collateral consequence that may be of “great importance” to a defendant, leaving the defendant to prove to the satisfaction of the court that took the plea, that the plea was uninformed as to the important consequence, and that, had that consequence been disclosed, the plea would not have been entered—or, at least, that the plea’s rejection would have been reasonably probable. Thus, although the Court now roots the judicial obligation to inform a pleading noncitizen of immigration consequences in due process, as a practical matter judges and defendants remain just as they were—a judge’s default in informing a noncitizen defendant that he may be deported will only be rectified in the context of a claim for what is essentially ineffective assistance of counsel, which is to say in the context of a claim that, of course, already exists, but is extraordinarily difficult to make
In advocating the conceptually straightforward and until now legally uncontroversial notion, that a guilty plea unequal to the basic due process purpose of demonstrating that its entry was knowing and voluntary should be permitted to be withdrawn, I acknowledge the inevitable concern that its embrace in the present context would provoke a stampede to the courthouse. That concern, rationally assessed, I believe is exaggerated. New York has required by statute, now for some 18 years, that judges warn noncitizens of their pleas’ potential immigration consequences (see CPL 220.50 [7]). It cannot be presumed that the statute has been pervasively ignored (see Padilla,
The conscientious provision of the already statutorily prescribed judicial warning—which all of the present appellants agree is adequate—would itself obviate the overwhelming majority of postconviction claims relating to undisclosed immigration consequences. And, in those presumably rare cases where, despite the remedy of plea withdrawal, there was a judicial default, all of the concerned parties would be spared complicated and prolonged motion practice; the defendant would simply, logically, fairly and expeditiously be given his or her plea back and proceed to trial on the indictment. I note that several jurisdictions have such a rule (see RI Gen Laws § 12-12-22 [c]; Cal Penal Code § 1016.5 [b]; Conn Gen Stat Ann § 54-1j [c]; DC Code § 16-713 [b]; Mass Gen Laws ch 278, § 29D; Ohio Rev Code Ann § 2943.031 [D]; Vt Stat Ann tit 13, § 6565 [c] [2]; Wash Rev Code § 10.40.200 [2]; Wis Stat Ann § 971.08 [2]); the sky has not fallen as a result.
The literal-minded application of the direct/collateral distinction, Padilla notwithstanding, has given rise to a state of affairs where a court must, on pain of reversal, inform a pleading defendant of a term of postrelease supervision (PRS) but may, without consequence, fail to disclose to the same defendant that the plea will result in deportation, an outcome not merely overshadowing but usually nullifying the term of postrelease supervision.
Given the plurality’s indisposition to navigate the not so complicated route from its understanding of what due process requires of a court taking a plea, to a logical and efficacious remedy when the standard it has set has not been met—indeed, its evident determination instead to follow a tortuous path influenced by what is, in the present context, a thoroughly discredited formalism—a legislatively prescribed remedy will be necessary to untie the Gordian knot now fashioned and protect the adjudicative rights of noncitizen criminal defendants.
I would reverse in each of the cases before us.
The advisement provided in connection with defendant Diaz’s plea was, I believe, affirmatively misleading as to the likelihood of any immigration consequence and, on that ground, Diaz should be permitted to withdraw his plea and face trial on the indictment charging an A-I drug felony; if that is a risk he wishes to take to preserve the possibility of remaining in this country where he has resided legally for most of his life and has an infant child, he should be permitted to do so.
I would note in passing that Diaz’s case illustrates the extreme procedural difficulty of obtaining relief by the means now prescribed. Although the plurality acknowledges that the “trial court clearly failed to tell [Diaz] that he might be deported” (plurality op at 200), and purports to afford him the possibility of relief, it logically precludes him from prevailing in any ensuing litigation, since the showing of prejudice it requires has already been made and found wanting; Diaz’s CPL 440.10 motion was denied on the ground that he failed to satisfy the
Finally, as to defendant Thomas, inasmuch as his case is on direct appeal, I believe he is entitled to the benefit of our current jurisprudence. His postplea fraud upon the court logically has no bearing upon whether his plea was knowing, intelligent and voluntary, and there is no ground advanced by the plurality or the People to except from the rule that, ordinarily, a direct appeal from a judgment of conviction will be governed by the law as it exists at the time the appeal is decided (see People v Jean-Baptiste,
The People, I note, really do not identify any relevant prejudice traceable to defendant’s fabrication of his demise. Thomas has already served his enhanced sentence. Even if his plea withdrawal motion is granted, and the People are unable to reprosecute him for lack of witnesses or physical evidence,
The People, whose interest properly lies not simply in winning this appeal but doing justice, can claim no prejudice from Padilla’s application to Thomas’s case. To the extent that the decision’s “new rule” retroactively applied may unduly impair the finality of convictions, that has been dealt with by the Supreme Court in Chaidez, which limits Padilla’s backward reach to cases that have not become final, i.e., those, like defendant’s, still on direct appeal (568 US at —,
In my view, Thomas’s right to relief is made out by the record of his plea proceeding at which, five days after his alleged wrongdoing and before being indicted, Thomas, then a 21-year-old novice to the criminal justice system, entered a plea to attempted criminal sale of a controlled substance in the third degree in exchange for a disarmingly attractive 30-day jail sentence without being advised by the court, or indeed by anyone present, that, upon his release, he would be deported. It is, I believe, clear that Thomas’s was not a knowing and voluntary plea.
. I refer here to the approach shared by the plurality and the dissenters for whom Judge Pigott has written, for as Judge Pigott has noted, those approaches are in their resolution practically indistinguishable. Neither affords noncitizen defendants relief from pleas that fail to establish the defendants’ awareness of their deportation consequence.
. We speak here of what Padilla, with doubtless accuracy, described as the “class . . . least able to represent themselves” (
. After requiring that noncitizen defendants be warned as to the possible immigration consequences of their contemplated pleas, CPL 220.50 (7) adds the proviso that the failure to give the prescribed warning “shall not be deemed to affect the voluntariness of a plea of guilty.” That the plurality ultimately finds this proviso compatible with its notion of what due process avails a pleading defendant (plurality op at 199 n 12) is strikingly indicative of how very narrow its decision is.
. The nullifying effect of deportation upon a PRS term was, of course, the circumstance about which defendant Peque’s attorney wondered aloud, when the deportation issue surfaced at Peque’s sentencing. He said, “Mr. [Peque] is subject to deportation following the completion of his sentence. I’m not sure how that’s going to impact, assuming the Court imposes the sentence that’s been agreed upon, I’m not sure how that will affect the post-release supervision aspect of it.”
. In view of this latter circumstance, the utility of the plurality’s advice that a noncitizen defendant seeking plea withdrawal for nonadvisement as to an immigration consequence “should make every effort to develop an adequate record of the circumstances surrounding the plea at sentencing” (plurality op at 199) is dubious. If counsel has, by hypothesis, been ineffective it does not seem reasonable to expect the same attorney to make a record as to the very matter as to which the representation was deficient. If, as the plurality points out, it is not generally prudent to assume that “defense counsel ‘will’ do something simply because it is required of effective counsel” (Moncrieffe v Holder, 569 US —, —,
. It is noted that while the People raise these impediments to reprosecution on appeal in a general way, they have never made any concrete allegation that they would be unable to proceed against defendant on the sale counts with which he was initially charged.
. As defendant observes, the immigration consequences of his plea to an attempted drug sale were dictated by 8 USC § 1251 (a) (2) (B) (i), a statute materially identical to its successor, 8 USC § 1227 (a) (2) (B) (i), the provision that applied to Padilla, and which was described by the Supreme Court as “succinct, clear, and explicit” (
Dissenting Opinion
(dissenting in People v Peque and People v Diaz, and concurring in People v Thomas). I concur with Judge Abdus-Salaam’s opinion in People v Thomas that “defendant Thomas’s challenge to the voluntariness of his plea must be evaluated in light of the practical and legal relationship between a criminal conviction and deportation at the time he pleaded guilty in 1992” (op of Abdus-Salaam, J., at 201), and as such, defendant is not entitled to relief for the reasons stated therein.
I join the Chief Judge’s dissent in People v Peque and People v Diaz in all respects because I believe the trial court’s failure to advise a noncitizen that the plea may potentially subject defendant to deportation requires automatic vacatur.
If deportation implicates due process for a noncitizen defendant, based solely on, and because of, that very immigration status and its attendant devastating consequences, then those consequences are no less consequential as an individualized matter. By locating noncitizen defendants in a rarefied criminal justice system—one that recognizes immigration status as the basis for a due process claim, but which simultaneously denies a status-based remedy—the opinion constructs an ultimately flawed legal framework.
In People v Peque: Order affirmed.
In People v Diaz: Order modified by remitting to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.
In People v Thomas: Order affirmed.
I also agree with the Chief Judge’s dissent in Peque that requiring preservation is not reasonable. In my opinion, defendant should not be penalized by demanding preservation when at the time that defendant Peque entered a