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DEFENDANT ALLEGED DEFENSE COUNSEL OVERSTATED THE RISK OF DEPORTATION CAUSING HIM TO REJECT A FAVORABLE PLEA OFFER; DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined a hearing was necessary on defendant’s motion to vacate his conviction based upon ineffective assistance of counsel. Defendant alleged defense counsel overstated the risk of deportation causing defendant to reject a favorable plea offer:

A defense attorney’s performance is deficient as a matter of law where he or she fails to accurately advise a client of the risk of deportation … . Here, defendant complains that his counsel overstated the immigration consequences of accepting an offer of a guilty plea to petit larceny by advising him that it would “definitely” result in deportation, when in fact it would only have rendered him deportable with the possibility of discretionary relief. Thus, defendant asserts that he rejected a favorable plea offer based on erroneous advice that the conviction would result in mandatory deportation.

We find that a hearing is necessary to determine whether counsel inaccurately advised defendant of the risk of deportation and if so, whether defendant was prejudiced by the attorney’s misadvice … . People v Qinghua Ni, 2020 NY Slip Op 03621, First Dept 6-25-20

 

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FAMILY COURT SHOULD HAVE MADE FINDINGS WHICH WOULD ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FIRST DEPT).

The First Department, reversing Family Court, determined the court should have made findings which would allow the child to petition for Special Immigrant Juvenile Status (SIJS):

The evidence shows that the subject child was unmarried and under the age of 21 at the time of the special findings hearing and order (see generally 8 USC § 1101[a][27][J]; 8 CFR 204.11[c] … ). The Family Court’s appointment of a guardian rendered the child dependent on a juvenile court … .

The evidence also established that reunification with the child’s parents was not viable due to neglect or abandonment. The child testified that, with no prior warning, his father left him in the United States with his uncle (petitioner), and that his parents later told him that they could not support him and did not want him back. The child further stated, and petitioner corroborated, that he had only occasional contact with his parents, and received no gifts or support from them, since coming here. This was sufficient to “evince[] an intent to forego . . . parental rights and obligations” or a failure to exercise a minimum degree of care to supply the child with adequate food, clothing, shelter, education, or supervision … .

In determining whether reunification was viable, the Family Court should not have refused to consider evidence of circumstances which occurred after the child’s 18th, but before his 21st, birthday … .

The evidence also demonstrated that it is not in the best interests of the child to return to Thailand, where his parents reside, or to be sent to live in Bangladesh, where he has citizenship but has never resided. The child presented evidence that his parents would not accept him if he returned to Thailand, that his Thai visa was on the verge of expiring and he had no way to renew it, and that he had no other place to live or way to support himself in Thailand or Bangladesh … . He also presented evidence that he was doing well in petitioner’s care … . Matter of Khan v Shahida Z., 2020 NY Slip Op 03480, First Dept 6-18-20

 

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FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FIRST DEPT).

The First Department, reversing Family Court, determined Family Court should have made findings enabling the child to petition for special immigrant juvenile status (SIJS):

The evidence establishes that the child was unmarried and under the age of 21 at the time of the special findings hearing and order (see 8 CFR 204.11[c]). The Family Court’s appointment of a guardian (petitioner) rendered the child dependent on a juvenile court … .

The evidence that the child had had no contact with his parents, and received no support from them, since at least September 2014 established that reunification with the parents was not viable due to neglect or abandonment ….  The parents’ consent to the appointment of a guardian and waiver of service also demonstrate an intent to relinquish their parental rights.

In determining whether reunification was viable, the Family Court should not have refused to consider evidence of circumstances that occurred after the child’s 18th, but before his 21st, birthday … .

The record demonstrates that it is not in the best interests of the child to return to Albania … . The evidence shows that the child suffered political persecution in Albania that his parents were unable to prevent … , that he had had no recent contact with his parents and was not sure if they would accept him if he returned … , and that he was doing well in petitioner’s care … . Matter of Lavdie H. v Saimira V., 2020 NY Slip Op 03177, First Dept 6-4-20

 

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DEFENDANT SUFFICIENTLY DEMONSTRATED A PLEA WHICH WOULD NOT RESULT IN MANDATORY DEPORTATION COULD HAVE BEEN WORKED OUT; THE MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to set aside his conviction based upon ineffective assistance of counsel should not have been denied without a hearing. The defendant presented sufficient evidence that defense counsel could have negotiated a plea which would not result in mandatory deportation:

Where the basis of a claim for ineffective counsel is counsel’s failure to attempt to negotiate an immigration friendly plea, defendant has to show that there is a reasonable probability that the People would have made such an offer … . If the likelihood that the People would have made such an offer is speculative, then the motion may be denied without a hearing … . Here, however, defendant’s motion shows that there was a reasonable possibility that his plea counsel could have secured a plea deal with less severe immigration consequences. …

Defendant has adequately alleged that there was a reasonable possibility that the People would have offered defendant such a plea, despite the fact that the drug possession charge is a lesser-included offense to the drug sale charge. First, the People agreed to a sentence of one year in prison and one year of post-release supervision in order to cover defendant’s drug offenses. This suggests that there was a reasonable possibility that the People would have agreed to a different, immigration-favorable disposition resulting in the same aggregate prison time … . …

Second, both offenses subject defendant to equally enhanced sentences if he were to be convicted of another felony within 10 years … . …

Third, if the People had only been willing to offer the lesser-included offense together with a longer sentence, defendant might well have been willing to agree to that. …

Finally, there is no evidence that the People specifically sought a conviction on the drug sales offense in order to secure a harsher immigration consequence for defendant … . …

‘… [D]efendant demonstrated a reasonable possibility that he would have rejected his plea had he known that he could have obtained a sentence that had less harsh immigration consequences … . People v George, 2020 NY Slip Op 02852, First Dept 5-14-20

 

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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMANDED; DEFENDANT WAS NOT INFORMED THAT BY PLEADING GUILTY TO A PROBATION VIOLATION HE WAS GIVING UP HIS RIGHT TO A HEARING; APPEAL CONSIDERED IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, remanding the matter, determined defendant was not advised he could be deported based on his guilty plea, and further determined defendant’s plea to a probation violation was defective because he was not informed he was giving up his right to a hearing. Although the issue was not preserved by a motion to withdraw the plea, the appeal was heard in the interest of justice:

When defendant, a noncitizen, pleaded guilty to criminal possession of a firearm, the court did not advise him that if he was not a citizen, he could be deported as a consequence of his plea. Even though he did not move to withdraw his guilty plea, there is no evidence that defendant knew about the possibility of deportation during the plea and sentencing proceedings. As such, the claim falls within the “narrow exception” to the preservation doctrine (People v Peque, 22 NY3d 168, 183 [2013], cert denied 574 US 850 [2014]). Therefore, defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation (id. at 198). Accordingly, we remit for the remedy set forth in Peque (id. at 200-201), and we hold the appeal in abeyance for that purpose.

Furthermore, defendant’s guilty plea to violation of probation was defective because there was no allocution about whether defendant understood that he was giving up his right to a hearing on the violation. While there is no mandatory catechism, Supreme Court failed to “advise defendant of his rights or the consequences regarding an admission to violating probation, including that he understood that he was entitled to a hearing on the issue and that he was waiving that right” … . Although defendant never moved to withdraw this plea and his claim is unpreserved, we review it in the interest of justice. People v Pinnock, 2020 NY Slip Op 02731, First Dept 5-7-20

 

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BECAUSE THE DEFENDANT WAS MADE AWARE OF THE POSSIBILITY OF DEPORTATION MONTHS BEFORE HE PLED GUILTY, HIS ARGUMENT THAT THE TRIAL JUDGE DID NOT INFORM HIM OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA WAS SUBJECT TO THE PRESERVATION REQUIREMENT; THE FAILURE TO PRESERVE THE ERROR PRECLUDED APPEAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a three-judge concurrence, determined defendant’s argument that the trial judge failed to inform him of the deportation consequences of his plea to a felony was subject to the preservation requirement. The defendant’s failure to preserve the error precluded appeal:

“[D]ue 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” … . However, before we may consider whether a trial court fulfilled that obligation, we must determine whether a defendant preserved the claim as a matter of law for our review or whether an exception to the preservation doctrine applies … . Here, service on defendant, in open court and months before the plea proceedings, of a “Notice of Immigration Consequences” form provided him with a reasonable opportunity to object to the plea court’s failure to advise him of the potential deportation consequences of his plea, making the narrow exception to the preservation doctrine unavailable to him … . * * *

“Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea on the same grounds subsequently alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10” (Peque, 22 NY3d at 182). While reiterating this rule in Peque, we also acknowledged that “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required” (id.). This exception to the preservation requirement, however, remains narrow … . * * *

The very first sentence of the Notice explicitly told defendant that “a plea of guilty to any offense” could “subject[] [him] to a risk that adverse consequences w[ould] be imposed on [him] by the United States immigration authorities, including, but not limited to, removal from the United States . . . .” It further noted that, among other things, a conviction for “burglary . . . or any other theft-related offense . . . for which a sentence of one year or more is imposed” would be deportable.

Those unambiguous statements provided defendant with sufficient notice of possible immigration consequences, including deportation, of his conviction, giving him “a reasonable opportunity” to express concerns to the court — during either his plea or at sentencing — regarding those consequences … . People v Delorbe, 2020 NY Slip Op 02126, CtApp 3-31-20

 

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DEFENDANT WAS TOLD BY DEFENSE COUNSEL WHEN HE PLED GUILTY IN 2007 THAT IF HE STAYED OUT OF TROUBLE WHILE ON PROBATION HE WOULD NOT BE DEPORTED, HOWEVER DEPORTATION WAS MANDATORY; DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL; CRITERIA FOR DETERMINING WHETHER THERE WAS A REASONABLE PROBABILITY DEFENDANT WOULD HAVE GONE TO TRIAL, INCLUDING HIS UNDISPUTED STRONG DESIRE TO STAY IN THE US, EXPLAINED IN SOME DEPTH (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined defendant (Martinez) was entitled to a hearing on his CPL 440.10 motion to vacate his 2007 judgment of conviction. At the time defendant pled guilty the court warned him there could be immigration consequences, but defense counsel told him he wouldn’t have to worry about deportation if he stayed out of trouble while on probation. In fact, however, deportation was mandatory. Supreme Court denied the motion based in part on defendant’s motivation for it, i.e., the expansion of his taxi business in Massachusetts. The First Department noted that plaintiff’s current motivation for the motion to vacate is irrelevant. The matter was sent back for a hearing in front of a different judge:

In the context of a guilty plea, the ultimate question of prejudice is whether there was a reasonable probability that a reasonable person in a defendant’s circumstances would have gone to trial if given constitutionally adequate advice … . A defendant must convince the court that a decision to reject the plea bargain would have been rational … . In that regard, appropriate factors to be weighed include, among others, evidence of defendant’s incentive, at the time of his plea, to remain in the United States rather than his native country; his respective family and employment ties at the time of his plea, to the United States, as compared to his country of origin; the strength of the People’s case; and defendant’s sentencing exposure … . In answering the prejudice question, judges should be cognizant that a noncitizen defendant confronts a very different calculus than confronts a United States citizen … . For a noncitizen defendant, “preserving [his] right to remain in the United States may be more important to [him] than any jail sentence”… . Thus, a determination of whether it would be rational for a defendant to reject a plea offer “must take into account the particular circumstances informing the defendant’s desire to remain in the United States” … .

Significantly, on the record before this Court, there is reason to believe that Martinez would have given paramount importance to avoiding deportation, if he had known that it was more than a mere possibility, but was an unavoidable consequence of his plea to an aggravated felony. Indeed, evidence regarding Martinez’s background completely supports his current assertion that his main focus has been always to remain in the United States. This much is undisputed: his long history in the United States, his efforts to become a citizen, his family circumstances, and his gainful employment in Massachusetts, all signal his strong connection to, and desire to remain in, the United States … . People v Martinez, 2020 NY Slip Op 00252, First Dept 1-14-20

 

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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

 

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DEFENDANT, A NONCITIZEN, WAS TOLD DURING HIS PLEA COLLOQUY THAT HE DID NOT HAVE THE RIGHT TO A JURY TRIAL ON THE DEPORTATION-ELIGIBLE B MISDEMEANOR; WHILE THE LEAVE APPLICATION WAS PENDING THE LAW WAS CHANGED TO AFFORD A PERSON IN DEFENDANT’S POSITION THE RIGHT TO A JURY TRIAL; THE MAJORITY UPHELD THE GUILTY PLEA; THE DISSENT ARGUED THE PLEA SHOULD NOT STAND (CT APP).

The Court of Appeals, in a brief memorandum, over an extensive dissenting opinion, determined the accusatory instrument accusing defendant of criminal contempt was sufficient and defendant’s guilty plea was voluntary. During the plea colloquy defendant, an noncitizen, was told he did not have the right to a jury trial on the deportation-eligible B misdemeanor. While defendant’s leave application to the Court of Appeals was pending, the court decided People v Suazo, 32 NY3d 491, affording persons in defendant’s position the right to a jury trial. The dissent argued the guilty plea should be vacated:

From the dissent:

In accordance with the law at the time of defendant Sixtus Udeke’s plea allocution, the trial court told defendant, a noncitizen, that he had no right to a trial by jury for a deportation-eligible Class B misdemeanor. While defendant’s leave application to this Court was pending, we issued a new rule in People v Suazo (32 NY3d 491 [2018]), recognizing precisely the right defendant was told he did not have during the plea colloquy: that noncitizens like defendant have the right to a trial by jury for crimes carrying the potential penalty of deportation. That rule applies retroactively to defendant’s appeal, and it leads to the conclusion that his guilty plea is invalid because he could not have knowingly and intelligently waived a right the court said he did not have. Therefore, I dissent from the majority decision that the guilty plea should stand. People v Udeke, 2019 NY Slip Op 09057, CtApp 12-19-19

 

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BECAUSE THE B MISDEMEANOR CARRIES DEPORTATION AS A POTENTIAL PENALTY, DEFENDANT IS ENTITLED TO A JURY TRIAL (SECOND DEPT).

The Second Department reversed defendant’s conviction based upon a recent Court of Appeals case which held a defendant charged with a misdemeanor which carries deportation as a potential penalty is entitled to a jury trial:

… [T]he defendant, a noncitizen, is entitled to a jury trial under the Sixth Amendment of the United States Constitution because the charged crime of attempted assault in the third degree, a class B misdemeanor, carries a potential penalty of deportation (see People v Suazo, 32 NY3d 491). We note that because People v Suazo was decided after this matter was argued but before it was decided, the change of the law set forth therein therefore applies to the defendant … . Accordingly, we reverse the judgment of conviction and grant a new trial. People v Ahsan, 2019 NY Slip Op 08571, Second Dept 11-27-19

 

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