Court’s Failure to Inform Defendant that Guilty Plea May Result in Deportation Violates Due Process/Vacation of Plea in Absence of Notification Not Automatic

In a full-fledged opinion by Judge Abdus-Salaam (with concurring and dissenting opinions), the Court of Appeals determined that all non-citizen defendants who plead guilty to a felony are entitled, under the Due Process clause, to notification that the plea may result in deportation, but that a failure to so notify does not automatically require vacation of the plea:

We … hold that due process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony.   In reaching this conclusion, we overrule the limited portion of our decision in People v Ford (86 NY2d 397 [1995]) which held that a court’s failure to advise a defendant of potential deportation never affects the validity of the defendant’s plea.

[We] further hold that, in light of the Court’s conclusion that a trial court must notify a pleading non-citizen defendant of the possibility of deportation, the trial court’s failure to provide such advice does not entitle the defendant to automatic withdrawal or vacatur of the plea.  Rather, to overturn his or her conviction, the defendant must establish the existence of a reasonable probability that, had the court warned the defendant of the possibility of deportation, he or she would have rejected the plea and opted to go to trial… .  People v Peque, et seq, 163, 164, 165, CtApp 11-19-13