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REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED.

The First Department, over a two-justice dissent, determined the non-citizen defendant, whose direct appeal was pending when he absconded, was entitled to the protection afforded by People v Peque, 22 NY3d 168, which requires the court to inform the defendant deportation may follow a plea to a felony:

The issue here is whether a defendant whose case still is on direct appeal should be denied the benefit of the Court of Appeals’ ruling in People v Peque … , which is rooted in federal constitutional law, because defendant absconded from parole before his attorney perfected this appeal. We conclude Peque should apply to defendant’s case.

In Peque, the Court of Appeals held that a trial court is obligated to apprise any defendants 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 … . That decision acknowledged that under federal immigration law, deportation, in many cases, is an inevitable consequence of a noncitizen’s guilty plea and that as part of the defendant’s decision to make a voluntary and intelligent choice to plead guilty, the defendant must be alerted to the deportation consequences by the court. In the instant case, the court did not advise defendant about the immigration consequences flowing from his plea … . People v Tejeda, 2016 NY Slip Op 05541, 1st Dept 7-14-16

 

CRIMINAL LAW (REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)/APPEALS (CRIMINAL LAW, REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)/DEPORTATION (CRIMINAL LAW, REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)/IMMIGRATION LAW  (CRIMINAL LAW, REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)

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