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FAILURE TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA REQUIRED THAT HE BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEA, DESPITE THE FACT THAT THE COURT OF APPEALS CASE MANDATING AN EXPLANATION OF DEPORTATION CONSEQUENCES CAME DOWN AFTER DEFENDANT’S PLEA.

The Second Department determined defendant should be afforded the opportunity to withdraw his plea because he was not informed of the deportation consequences of the plea. Although the Court of Appeals case requiring that the deportation consequences be explained came down after defendant’s plea, the issue was properly raised on defendant’s direct appeal:

Relying upon People v Peque (22 NY3d 168) the defendant contends that his plea of guilty was not knowing and voluntary because the plea record demonstrates that the court never advised him of the possibility that he would be deported as a consequence of his plea. In Peque, the Court of Appeals held that, as a matter of “fundamental fairness,” due process requires that a court apprise a noncitizen pleading guilty to a felony of the possibility of deportation as a consequence of the plea of guilty (id. at 193). A defendant seeking to vacate a plea based on this defect must establish that there is a “reasonable probability” that he or she would not have pleaded guilty and would instead have gone to trial had the court warned of the possibility of deportation (id. at 176, 198).

As a threshold matter, we disagree with the People’s contention that Peque should only apply prospectively. Inasmuch as Peque, decided after the defendant’s plea, involved federal constitutional principles, it must be applied to this direct appeal … . Contrary to the People’s contention, the record does not demonstrate either that the Supreme Court mentioned, or that the defendant was otherwise aware of, the possibility of deportation. Therefore, the defendant’s claim is not subject to the requirement of preservation … . People v Odle, 2015 NY Slip Op 09699, 2nd Dept 12-30-15

CRIMINAL LAW (DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF GUILTY PLEA ENTITLED TO WITHDRAW PLEA)/DEPORTATION (DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF GUILTY PLEA, ENTITLED TO WITHDRAW PLEA)

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WHERE NO NOTICE OF APPEAL IS FILED, A CONVICTION AND SENTENCE BECOMES FINAL WHEN THE 30-DAY PERIOD FOR FILING A NOTICE OF APPEAL EXPIRES.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissenting opinion by Judge Rivera, determined a judgment of conviction and sentence becomes final when the 30-day period for filing a notice of appeal expires (where no notice is filed). Here the issue was whether the defendant could move to vacate his conviction by guilty plea because he was not informed of the deportation consequences of the plea. Because the motion to vacate would not be available if defendant’s conviction and sentence became final before Padilla v Kentucky (559 US 356) was decided (requiring that a defendant be informed of deportation consequence of a plea), the date of finality was determinative. If the finality date is 30 days after conviction and sentence, defendant’s conviction and sentence would have been final before Padilla was decided. If, as defendant argued, the conviction and sentence became final one year and 30 days after the conviction and sentence, when the time for moving to file a late notice of appeal expired, defendant’s conviction and sentence would not have been final before Padilla was decided. Because the Court of Appeals decided the conviction and sentence became final when no notice of appeal was filed within 30 days, defendant could not move to vacate his conviction:

Adopting defendant’s reasoning would result in uncertainty in the finality of judgments in many procedural situations. For example, a defendant who takes a direct appeal to the Appellate Division but does not seek leave to appeal to this Court in a timely fashion could argue that the judgment was not final until one year and 30 days after the Appellate Division affirmance, inasmuch as the defendant could have sought leave from this Court to file a belated application for discretionary review pursuant to CPL 460.30 (1). Or, a defendant who has filed a notice of appeal with the Appellate Division but has had the appeal dismissed due to failure to perfect could argue that the judgment is not yet final, inasmuch as the defendant could ask the Appellate Division to vacate the dismissal of the appeal.

Indeed, if we adopt defendant’s logic, other defendants who did not take a direct appeal conceivably could argue that their judgments were never final, inasmuch as they could seek to file a late notice of appeal even after the one-year grace period of CPL 460.30 has expired by moving for a writ of error coram nobis … . People v Varenga, 2015 NY Slip Op 09312, CtApp 12-17-15

CRIMINAL LAW (WHERE NO NOTICE OF APPEAL IS FILED, A JUDGMENT OF CONVICTION AND SENTENCE BECOMES FINAL WHEN THE 30-DAY PERIOD FOR FILING A NOTICE OF APPEAL EXPIRES)/JUDGMENT OF CONVICTION AND SENTENCE (BECOMES FINAL UPON EXPIRATION OF 30-DAY PERIOD FOR FILING A NOTICE OF APPEAL)

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Inaccurate Advice About the Deportation Consequences of a Guilty Plea Constitutes Ineffective Assistance; Defendant Entitled to a Hearing on His Motion to Vacate His Conviction in this Pre-Padilla Case

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction (by guilty plea) in this pre-Padilla case. Defendant alleged he was told deportation was not likely, or was a “possibility,” when, in fact, deportation was mandatory. That allegation, plus an assertion he would have negotiated a different plea which did not require deportation had he known the actual consequences of his plea, was sufficient to warrant a hearing:

In Padilla v Kentucky (559 US 356), the United States Supreme Court ruled that the Sixth Amendment to the United States Constitution requires criminal defense counsel to advise their noncitizen clients about the risk of deportation arising from a guilty plea. However, that decision is not applied retroactively to state court postconviction proceedings … . Since the defendant’s judgment of conviction became final when his time to take an appeal expired—long before Padilla was decided in 2010—Padilla is not applicable here. Therefore, “counsel’s failure to warn a defendant that a guilty plea might lead to removal from the United States” …  does not, in this case, amount to ineffective assistance of counsel.

However, “inaccurate advice about a guilty plea’s immigration consequences constitute[s]” ineffective assistance of counsel … . People v Pinto, 2015 NY Slip Op 08441, 2nd Dept 11-18-15

 

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People v Peque, Which Requires that a Defendant Be Informed of the Immigration Consequences of a Guilty Plea, Is Not Applied Retroactively

The Second Department determined that People v Peque (22 NY3d 168), which requires that defendant’s be informed of the immigration consequences of a guilty plea, would not be applied retroactively:

The defendant’s conviction became final prior to People v Peque (22 NY3d 168), in which the Court of Appeals held that courts were required to advise defendants of the deportation consequences of a plea of guilty. The defendant contends that Peque should be applied retroactively. This contention is without merit.

Previously, in Padilla v Kentucky (559 US 356), the United States Supreme Court held that defense counsel were under a duty to advise noncitizen defendants of the deportation risks of their pleas of guilty. It is now settled that the Padilla decision does not apply retroactively in state court postconviction proceedings … . For the same reasons, we decline to give retroactive application to Peque, which, like Padilla, concerns the immigration consequences of a plea of guilty, and “rather than going to the heart of a reliable determination of guilt or innocence, instead concentrates on the defendant’s appreciation of the immigration consequences that may flow from an otherwise proper plea allocution” … . People v Pena, 2015 NY Slip Op 07685, 2nd Dept 10-21-15

 

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Failure to Advise Non-Citizen Defendant of Deportation Consequences of Plea Required Remittal

The Fourth Department noted that the court’s failure to advise the non-citizen defendant of the deportation consequences of his guilty plea required that the case be remitted to afford the defendant the opportunity to move to vacate his plea:

We agree with defendant, a noncitizen, that County Court failed to advise him of the deportation consequences of his felony plea, as required by People v Peque (22 NY3d 168). We therefore hold the case, reserve decision and remit the matter to County Court to afford defendant the opportunity to move to vacate his plea based upon a showing that there is a “reasonable probability” that he would not have pleaded guilty had he known that he faced the risk of being deported as a result of the plea (id. at 176…). People v Traverso, 2015 NY Slip Op 07376, 4th Dept 10-9-15

 

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Pre-“Padilla” Statement by Counsel that Defendant’s Plea to an “Aggravated Felony” Would Not Result in Deportation Justified a Hearing on Defendant’s Motion to Vacate Her Conviction

The Third Department determined defendant was entitled to a hearing on her motion to vacate her conviction.  Defendant alleged she was erroneously told by her attorney (pre “Padilla”) her conviction (for an “aggravated felony”) would not cause her to be deported:

… [D]efendant’s … claim that counsel affirmatively misinformed her about the plea’s deportation consequences is not dependent upon Padilla; rather, it rests upon established law at the time of her plea that defense counsel’s affirmative misrepresentation to a noncitizen regarding the deportation consequences of a contemplated guilty plea constitutes deficient performance so as to satisfy the first prong of an ineffective assistance of counsel claim … .

In her affidavit in support of the motion, defendant alleged that her counsel advised her that, although immigration authorities would be notified about her guilty plea, “he did not think anything further would happen.” In fact, the crime of rape in the third degree constitutes an “aggravated felony” that results in mandatory deportation (see 8 USC § 1101 [a] [43] [a]; § 1227 [a] [2] [A] [iii]; § 1229b [a] [3]…). Defendant further averred that, had counsel informed her that she was certain to be deported as a result of her guilty plea, she would not have pleaded guilty and would have gone to trial. As defendant sufficiently alleged that counsel provided incorrect information concerning the deportation consequences that would result from her guilty plea and that she was prejudiced as a result thereof, she was entitled to a hearing on this aspect of her CPL 440.10 motion … . People v Ricketts-simpson, 2015 NY Slip Op 05975, 3rd Dept 7-9-15

 

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Failure to Warn Defendant His Guilty Plea Could Lead to Deportation, Prior to the Supreme Court’s 2010 Decision in Padilla v Kentucky, Did Not Constitute Ineffective Assistance of Counsel

The Second Department determined that the failure to notify the defendant prior his guilty plea (in 2000) could be the basis of deportation proceedings did not constitute ineffective of counsel:

On March 31, 2010, the United States Supreme Court held in Padilla v Kentucky (559 US 356) that the Sixth Amendment requires defense attorneys to inform noncitizen clients of the deportation risks of guilty pleas. However, Padilla does not apply retroactively to persons whose convictions became final before Padilla was decided … . Without the benefit of the Padilla rule, the alleged failure of the defendant’s attorney to properly advise him of the possibility that he might be deported as a result of his plea does not constitute deficient performance under the United States or New York Constitutions. At the time that the defendant entered his plea of guilty in 2000, defense counsel’s performance was governed by the rule that “the failure of [defense] counsel to warn [a] defendant of the possibility of deportation [did not] constitute ineffective assistance of counsel” … . People v Taylor, 2015 NY Slip Op 00563, 2nd Dept 1-21-15

 

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Where Deportation As a Result of a Guilty Plea Is Not Mentioned by the Court, Preservation of the Error Is Not Required

The Second Department noted that, where the court does not mention the prospect of deportation as a result of a guilty plea, the error need not be preserved and the defendant should be given the opportunity to demonstrate to the court the guilty plea would not have been entered if the possibility of deportation were known. People v Al-Mulwallad, 2014 NY Slip OP 07361, 2nd Dept 10-29-14

 

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Dismissal of Deported Defendant’s Appeal (Without Prejudice) Appropriate Where Defendant’s Continued Participation in the Proceedings Would Be Required Should the Appeal Be Successful

The Second Department determined defendant’s appeal of his motion to vacate his conviction should be dismissed without prejudice because he had been deported and his continued participation in the proceedings would be required if the appeal were successful, distinguishing People v Ventura, 17 NY3d 675, where dismissal was not appropriate because the defendant’s participation in the case was no longer required. People v Harrison, 2014 NY Slip Op 02076, 2nd Dept 3-26-14

 

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Defendant Entitled to Hearing on Motion to Vacate His Conviction (by Guilty Plea) Based Upon Defense Counsel’s Alleged Failure to Inform Him of the Risk of Deporatation

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction. Defendant presented sufficient evidence to warrant a hearing about whether his attorney’s alleged failure to inform him that his guilty plea could result in deportation constituted ineffective assistance of counse under Padilla v Kentucky, 559 US 356.  The court explained the analytical criteria:

“In order to prevail on a claim that, prior to deciding whether to plead guilty, a defendant was deprived of the right to the effective assistance of counsel under the United States Constitution, he or she must meet the two-part standard set forth in Strickland v Washington … . “Under the first prong of that standard, the defendant must show that counsel’s representation fell below an objective standard of reasonableness'” … . “The second prong focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process'” … . * * *

In Padilla, the Supreme Court held that the Sixth Amendment to the United States Constitution requires an attorney for a criminal defendant to provide advice to the defendant about the risk of deportation which will arise as a result of a plea of guilty … . Thus, in those cases in which Padilla is applicable, “where an attorney fails to advise a criminal defendant, or misadvises the defendant, regarding clear removal consequences of a plea of guilty, his or her representation falls below an objective standard of reasonableness” … . * * *

“To satisfy the second prong of the Strickland standard, also known as the prejudice prong, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” … . “In the context of a Padilla claim, the defendant must convince the court that a decision to reject the plea bargain would have been rational under the circumstances'” … . Under the particular circumstances of this case, the defendant established, sufficiently to warrant an evidentiary hearing, that a decision to reject the plea bargain would have been rational.  People v Varenga, 2014 NY Slip Op 01472, 2nd Dept 3-5-14

 

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