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THE SENTENCING JUDGE DID NOT INFORM DEFENDANT OF THE IMMIGRATION CONSEQUENCES FOR NONCITIZENS; MATTER REMITTED TO GIVE THE DEFENDANT THE OPPORTUNITY TO MOVE TO VACATE HER GUILTY PLEA, DESPITE THE FACT DEFENSE COUNSEL TOLD THE JUDGE THAT DEFENDANT SAID SHE WAS A CITIZEN (SECOND DEPT).

The Second Department remitted the matter to allow defendant the opportunity to move to vacate her plea of guilty based upon the sentencing court’s failure to inform the defendant of the immigration consequences for noncitizens. Defense counsel had informed the court that defendant had informed him she was a citizen:

… [D]efense counsel’s statement during the plea proceeding that the defendant had informed him that she was a citizen of the United States did not absolve the court of its obligations pursuant to Peque [22 NY3d 168]. As we explained in People v Williams, “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” … .

… [I]n the present case … the presentence investigation report explained that an “immigration record check” had revealed, among other things, that the defendant was not in the United States “legally.”

The defendant’s due process claim is thus properly presented on the defendant’s direct appeal, and in the absence of the warning required under Peque, we remit the matter to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate her plea, and for a report by the Supreme Court thereafter … . People v Ulanov, 2020 NY Slip Op 07108, Second Dept 11-25-20

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; DEFENDANT’S ONE-YEAR SENTENCE, WHICH HAD ALREADY BEEN SERVED, WAS REDUCED BY ONE DAY IN PART TO ADDRESS THE IMMIGRATION CONSEQUENCES OF A ONE-YEAR SENTENCE (SECOND DEPT).

The Second Department, finding the waiver of appeal invalid, reduced defendant’s sentence by one day based in part on the immigration consequences of a one-year sentences:

The defendant’s purported waiver of his right to appeal was invalid because the Supreme Court’s colloquy mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal, and failed to inform the defendant that appellate review remained available for certain issues … . Further, the written waiver form signed by the defendant was insufficient to overcome the deficiencies in the court’s explanation of the waiver of the right to appeal, since it did not contain language clarifying that appellate review remained available for certain issues … . Thus, the purported waiver does not preclude this Court from reviewing the issue of whether the defendant’s sentence was excessive … .

Although the defendant has served his sentence, the question of whether the sentence imposed should be reduced is not academic, since the sentence may have potential immigration consequences … . People v Joseph, 2020 NY Slip Op 05928, Second Dept 10-21-20

 

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THE FACT THAT PATERNITY HAD NOT BEEN ESTABLISHED DID NOT PRECLUDE MOTHER’S GUARDIANSHIP PETITION OR FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined the petition to have the child’s mother appointed guardian and to make findings necessary for the child to petition for special immigrant juvenile status (SIJS) should have been granted:

The Family Court should not have dismissed the guardianship petition on the ground that paternity had not been established. A natural parent may be appointed guardian of his or her own child (see Family Ct Act § 661 [a] …), and the mere fact that paternity has not been established for the putative father does not preclude the guardianship petition or the issuance of an order making specific findings enabling the subject child to petition for SIJS … . …

Here, the subject child is under the age of 21 and unmarried, and since we have found that the mother should have been appointed as the subject child’s guardian, a finding also should have been made that the child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) …. Further, based upon our independent factual review, the record supports a finding that reunification of the subject child with his father is not a viable option due to parental abandonment  …. Lastly, the record supports a finding that it would not be in the best interests of the subject child to return to Guatemala … . Matter of Mardin A. M.-I. (Reyna E. M.-I.–Mardin H.), 2020 NY Slip Op 05754, Second Dept 10-14-20

 

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THE APPELLATE COURT, OVER A TWO-JUSTICE DISSENT, REFUSED TO LOWER DEFENDANT’S SENTENCE BY ONE DAY TO AVOID DEPORTATION (SECOND DEPT).

The Second Department, over a two-justice dissent, determined defendant’s one-year sentence for assault, which had already been served at the time of the appeal, should not be reduced by one-day to avoid the immigration consequences of the one-year sentence (deportation):

On this record, even taking into specific consideration the potential immigration consequences of the jury’s verdict and the court’s sentence thereon, and recognizing that the trial judge has the best first-hand knowledge of the case and of the defendant, it cannot be said that the definite term of imprisonment of one year was unduly was harsh or excessive, or that any reduction of one day is warranted to further the interest of justice. …

We have rejected requests for one-day sentence reductions in cases with immigration consequences where the defendants used physical force or violence in the commission of their crimes against others … . …

Here, the defendant’s conduct involved violence against two assault victims, so that a one-day sentence reduction would be an outlier measured against our existing precedents. In any event, to reduce the defendant’s sentence by one day for the purpose of circumventing the normal application of U.S. immigration laws and procedures, in an appeal involving a) physical violence, b) against duly authorized peace officers, c) working in the line of duty, d) causing permanent physical injury to one of the officers, e) and inconsistent with this Court’s prior precedents, builds a bridge that is too far for us to traverse. People v Janvier, 2020 NY Slip Op 04861, Second Dept 9-2-20

 

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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS PLEA; MATTER CONSIDERED IN THE INTEREST OF JUSTICE; INEFFECTIVE ASSISTANCE ISSUE DEPENDS ON MATTERS OUTSIDE THE RECORD AND CAN ONLY BE ADDRESSED BY A MOTION TO VACATE (FOURTH DEPT).

The Fourth Department, remitting that matter to allow defendant to move to withdraw his guilty plea, considering the issue in the interest of justice, determined defendant was not informed of the deportation consequences of pleading guilty. Because the ineffective assistance claim depends in part on matters outside the record, it can only be addressed in a motion to vacate the conviction:

… [D]efendant, a noncitizen, contends that his felony guilty plea was not knowingly, voluntarily, and intelligently entered because Supreme Court failed to advise him of the potential deportation consequences of such a plea, as required by People v Peque (22 NY3d 168 [2013], cert denied 574 US 840 [2014]). As a preliminary matter, we note that defendant’s challenge to the voluntariness of his plea would survive even a valid waiver of the right to appeal … . Even assuming, arguendo, that defendant was required to preserve his contention under the circumstances of this case … , we exercise our power to address it as a matter of discretion in the interest of justice … . “[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” … . Here, the record of the plea proceeding establishes that the court failed to fulfill that obligation … . As defendant contends and contrary to the People’s suggestion, “the case should be remitted to afford defendant 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” … . People v Jumale, 2020 NY Slip Op 04697, Fourth Dept 8-20-20

 

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THE RECORD WAS NOT SUFFICIENT FOR CONSIDERATION OF THE INEFFECTIVE ASSISTANCE ARGUMENT RE WHETHER DEFENDANT WAS ADEQUATELY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA; THE PRECISE NATURE OF COUNSEL’S ADVICE WAS NOT IN THE RECORD; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined the record was insufficient to preserve the ineffective assistance of counsel argument. The defendant argued that he was insufficiently informed about the deportation-risk associated with his guilty plea. The majority held that the record did not reflect the precise advice given by counsel and therefore the appropriate mechanism for review is a CPL 440.10 motion. The dissenters argued the record was sufficient to send the matter back for a motion to vacate the plea:

We do not agree with defendant’s attempt to exempt himself from the necessity of making a CPL 440.10 motion based on his counsel’s statements at the plea hearing concerning the off-the-record advice concerning immigration that had been rendered. To reiterate, counsel’s statements to the court, on their face, are general in nature and do not purport to describe the contents of the immigration advice that defendant actually received. The statement that defendant had been advised of “all possible consequences” was consistent both with accurate advice that the plea would subject him to mandatory deportation and with inaccurate advice that failed to warn him of that consequence. We cannot, on this record, tell whether the advice actually given was accurate or inaccurate. Certainly, it cannot be said that counsel’s statement establishes “irrefutably” … that the advice given was inaccurate, as is required to render a CPL 440.10 motion unnecessary. People v Gomez, 2020 NY Slip Op 04518, First Dept 8-13-20

 

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DESPITE HAVING MADE A PRIOR MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT WAS ENTITLED TO A HEARING ON THE INSTANT MOTION WHICH WAS SUPPORTED BY AN AFFIDAVIT BY HIS ATTORNEY WHO ACKNOWLEDGED HE TOLD DEFENDANT A GUILTY PLEA WOULD NOT RESULT IN DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. The fact that defendant had made a similar motion which was denied did not preclude the instant motion which, unlike the prior motion, was supported by an affidavit from the attorney who handled defendant’s guilty plea. Defendant argued he would not have pled guilty had he been aware of the deportation consequences:

Contrary to the People’s contention, defendant’s failure to include an affidavit from this attorney on the first CPL article 440 motion did not preclude him from filing the second CPL article 440 motion that did contain such an affidavit (see CPL 440.10 [3] [c]… ). We further note that County Court’s denial of defendant’s motion was not mandatory as CPL 440.10 (3) provides that “in the interest of justice and for good cause shown [the court] may in its discretion grant the motion if it is otherwise meritorious and vacate the judgment” … .

In that vein, we note the numerous statements made in the supporting affidavit of defendant’s former attorney with respect to his representation of defendant in his 2000 criminal matter. The affidavit indicates that, upon being retained by defendant, his sole focus was on negotiating a favorable split sentence that would allow defendant to be released from custody as soon as possible. He admits that, in pursuing a favorable sentence, he did not conduct any investigation of the facts surrounding the underlying criminal offense, initiate any preindictment discovery or otherwise raise what he now identifies are arguably fatal deficiencies in the charges brought against defendant. With respect to defendant’s allegation that he was affirmatively misinformed regarding the potential immigration consequences of entering a guilty plea to a class C drug felony, the attorney candidly concedes that, despite being aware of the fact that defendant was only a lawful permanent resident and not a citizen of the United States at the time that defendant entered his September 2000 guilty plea, he specifically advised defendant that his guilty plea would have no effect on his lawful permanent resident status and that he would not be deported from the country. People v Perez, 2020 NY Slip Op 03825, Third Dept 7-9-20

 

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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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