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People v Peque, Which Requires that a Defendant Be Informed of the Immigration Consequences of a Guilty Plea, Is Not Applied Retroactively

The Second Department determined that People v Peque (22 NY3d 168), which requires that defendant’s be informed of the immigration consequences of a guilty plea, would not be applied retroactively:

The defendant’s conviction became final prior to People v Peque (22 NY3d 168), in which the Court of Appeals held that courts were required to advise defendants of the deportation consequences of a plea of guilty. The defendant contends that Peque should be applied retroactively. This contention is without merit.

Previously, in Padilla v Kentucky (559 US 356), the United States Supreme Court held that defense counsel were under a duty to advise noncitizen defendants of the deportation risks of their pleas of guilty. It is now settled that the Padilla decision does not apply retroactively in state court postconviction proceedings … . For the same reasons, we decline to give retroactive application to Peque, which, like Padilla, concerns the immigration consequences of a plea of guilty, and “rather than going to the heart of a reliable determination of guilt or innocence, instead concentrates on the defendant’s appreciation of the immigration consequences that may flow from an otherwise proper plea allocution” … . People v Pena, 2015 NY Slip Op 07685, 2nd Dept 10-21-15

 

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