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COURT WAS REQUIRED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, DESPITE DEFENDANT’S ERRONEOUS STATEMENT TO THE COURT THAT HE IS A US CITIZEN, DEFENDANT ALLOWED TO MOVE TO VACATE HIS PLEA (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over an extensive dissent, determined defendant should be afforded the opportunity to move to vacate his guilty plea because the court did not inform him of the deportation consequences. Although the probation report indicated defendant was not a US citizen and was undocumented, the defendant, who had a history of mental illness, told the court, when asked, the he was a US citizen. The First Department held that all defendants must be informed of the deportation consequences for non-citizens:

In People v Peque (22 NY3d 168 [2013]…), the Court of Appeals held that before accepting a plea, due process requires that a court “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” … . The Court reasoned that “fundamental fairness . . . 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” … . Accordingly, “a noncitizen defendant convicted of a removable crime can hardly make a voluntary and intelligent choice among the alternative courses of action'” unless informed of the possibility of deportation … .

Defendant's statement to the court that he was a citizen did not absolve the court of its obligations pursuant to Peque. Notably, Peque did not condition the need to give this warning on whether or not the court has reason to believe the defendant is not a citizen. The warning mandated by Peque is required whether the defendant is a citizen or not. Indeed, the Court of Appeals recognized that in order to protect the rights of the large number of noncitizen defendants pleading guilty to felonies in the state, it was necessary to “make all defendants aware that, if they are not United States citizens,” pleading guilty to a felony might lead to deportation … . People v Palmer, 2018 NY Slip Op 00638, First Dept 1-2-18

CRIMINAL LAW (DEPORTATION, COURT WAS REQUIRED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, DESPITE DEFENDANT'S ERRONEOUS STATEMENT TO THE COURT THAT HE IS A US CITIZEN, DEFENDANT ALLOWED TO MOVE TO VACATE HIS PLEA (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, COURT WAS REQUIRED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, DESPITE DEFENDANT'S ERRONEOUS STATEMENT TO THE COURT THAT HE IS A US CITIZEN, DEFENDANT ALLOWED TO MOVE TO VACATE HIS PLEA (FIRST DEPT))/DEPORTATION CRIMINAL LAW, COURT WAS REQUIRED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, DESPITE DEFENDANT'S ERRONEOUS STATEMENT TO THE COURT THAT HE IS A US CITIZEN, DEFENDANT ALLOWED TO MOVE TO VACATE HIS PLEA (FIRST DEPT))/PLEA, MOTION TO VACATE (CRIMINAL LAW, DEPORTATION, COURT WAS REQUIRED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, DESPITE DEFENDANT'S ERRONEOUS STATEMENT TO THE COURT THAT HE IS A US CITIZEN, DEFENDANT ALLOWED TO MOVE TO VACATE HIS PLEA (FIRST DEPT))

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