JUDGES SHOULD NOT ASK A DEFENDANT WHETHER HE OR SHE IS A US CITIZEN IN PLEA PROCEEDINGS; RATHER JUDGES SHOULD INFORM ALL DEFENDANTS THE PLEA TO A FELONY MAY RESULT IN DEPORTATION IF HE OR SHE IS NOT A US CITIZEN (SECOND DEPT).

The Second Department, over a concurrence, rejected defendant’s argument that his plea was involuntary because he was not informed he would be deported as a consequence of the plea. There was no indication in the record that plaintiff was not a US citizen. Defendant told the court he was a citizen. And the pre-sentence report indicated defendant was a naturalized US citizen. However, the Second Department took the opportunity to instruct the courts how the citizenship issue should be handled:

… [A] trial court should not ask a defendant whether he or she is a United States citizen and decide whether to advise the defendant of the plea’s deportation consequence based on the defendant’s answer. Instead, a trial court should advise all defendants pleading guilty to felonies that, if they are not United States citizens, their felony guilty plea may expose them to deportation . This recommendation is consistent…  with the Court of Appeals’ pronouncement in Peque: “[T]o protect the rights of the large number of noncitizen defendants pleading guilty to felonies in New York, trial courts must now make all defendants aware that, if they are not United States citizens, their felony guilty pleas may expose them to deportation” … . Additionally, this recommendation is consistent with the legislature’s pronouncement in CPL 220.50(7). Although that statute, deemed to be repealed September 1, 2020, indicates, in part, that “[t]he failure to advise the defendant pursuant to this subdivision shall not be deemed to affect the voluntariness of a plea of guilty or the validity of a conviction, nor shall it afford a defendant any rights in a subsequent proceeding relating to such defendant’s deportation, exclusion or denial of naturalization[,]” it specifically provides, in part, that “[p]rior to accepting a defendant’s plea of guilty to a count or counts of an indictment or a superior court information charging a felony offense, the court must advise the defendant on the record, 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”… . Moreover, giving a “short, straightforward statement” … regarding deportation will neither add significantly to the length of the plea proceeding nor encroach meaningfully on the trial court’s discretion. Whether a defendant receives the Peque warning should not depend on the defendant having to acknowledge, on the record in open court, that he or she is not a United States citizen, particularly since eliciting noncitizen status may raise, in some cases, concerns of compelled self-incrimination … . People v Williams, 2019 NY Slip Op 09303, Second Dept 12-24-19