Melissa Latino, for appellant.
Susan Rider-Ulacco, for respondent.
Immigrant Defense Project, amicus curiae.
Rosemary Herbert, for appellant.
Vincent Rivellese, for respondent.
Immigrant Defense Project, amicus curiae.
Lynn W. L. Fahey, for appellant.
Jennifer Hagan, for respondent.
Immigrant Defense Project, amicus curiae.
In these criminal appeals, we are called upon to decide whether, prior to permitting a defendant to plead guilty to a felony, a trial court must inform the defendant that, if the defendant is not a citizen of this country, he or she may be deported as a result of the plea. Our resolution of this issue is grounded in the right to due process of law, the bedrock of our constitutional order. That guarantee, most plain in its defense of liberty yet complex in application, requires us to strike a careful balance between the freedom of the individual and the orderly administration of government.
Upon review of the characteristics of modern immigration law and its entanglement with the criminal justice system, a majority of this Court, consisting of Chief Judge Lippman, Judges Graffeo, Read, Rivera and me, finds that deportation is a plea consequence of such tremendous importance, grave impact and frequent occurrence that a defendant is entitled to notice that it may ensue from a plea. We therefore hold that due 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 . In reaching this conclusion, we overrule the limited portion of our decision in People v Ford (86 N.Y.2d 397 ) which held that a court's failure to advise a defendant of potential deportation never affects the validity of the defendant's plea. However, a separate majority, consisting of Judges Graffeo, Read, Smith and me, reaffirms the central holding of Ford regarding the duties of a trial court and the distinction between direct and collateral consequences of a guilty plea, and we make clear that our precedent in this area is not otherwise affected by today's decision. Judges Graffeo, Read, Smith and I further hold that, in light of the Court's conclusion that a trial court must notify a pleading non-citizen defendant of the possibility of deportation, the trial court's failure to provide such advice does not entitle the defendant to automatic withdrawal or vacatur of the plea. Rather, to overturn his or her conviction, the defendant must establish the existence of a reasonable probability that, had the court warned the defendant of the possibility of deportation, he or she would have rejected the plea and opted to go to trial (see footnote 1, supra). 
Because the disposition of these appeals varies with the facts of each one, I begin by reviewing the factual background and procedural history of each case.
People v Peque
Shortly after midnight on June 20, 2009, defendant Peque, a native of Guatemala, was arrested for allegedly raping a bartender in a bathroom stall at an inn. Defendant was later indicted on one count of Rape in the First Degree (see Penal Law § 130.35 ). At arraignment, defendant told the court that he was from Guatemala City and lacked a social security number, and during their bail application, the People informed the court that, in prison, defendant had made statements indicating he was in the United States unlawfully.
After a series of later court appearances and plea negotiations, defendant pleaded guilty to first-degree rape in exchange for a promised sentence of a 17½-year determinate prison term to be followed by five years of postrelease supervision. Defendant indicated that he had discussed his plea with his attorney, and when the court asked defendant, "Is there anything at this point in the process that you do not understand, " he replied, via an interpreter, "No, everything is clear." The court accepted defendant's guilty plea without advising him that his first-degree rape conviction might result in his deportation because it qualified as a conviction for an "aggravated felony" under federal immigration statutes (see 8 USC §§ 1101 [a]  [A]; 1227 [a] ).
At sentencing, the court asked defense counsel whether there was "any legal reason sentence should not be pronounced, " and counsel responded, "Not that I'm aware of, Judge." Counsel then stated for the record that defendant was "subject to deportation following the completion of his sentence" and that counsel nonetheless wished for the court "to ratify the sentence as agreed upon." Counsel also mentioned that he had informed defendant of his "right of access to the Guatemalan consulate, " which defendant had declined to exercise. Defendant, in turn, said, "I will ask your Honor to have mercy and allow me to be deported to my country within five years." Noting that it had no control over the immigration process, the court sentenced defendant as promised.
Defendant appealed, asserting that his guilty plea was not knowing, intelligent and voluntary because the trial court had not mentioned the possibility of deportation at the time of the plea. Defendant also claimed that his lawyer had been ineffective for not apprising him that he could be deported if he pleaded guilty. The Appellate Division affirmed defendant's conviction (88 A.D.3d 1024, 1024-1025 [3d Dept 2011]). Relying on Ford, supra, the Appellate Division found that "[i]nasmuch as a defendant's potential for deportation is considered a collateral consequence of a criminal conviction, County Court's failure to advise defendant of such consequence does not render the plea invalid" (88 A.D.3d at 1025). The court rejected defendant's ineffective assistance of counsel claim as unreviewable because it "involves matters largely outside of the record and is more appropriately addressed by a CPL article 440 motion" (id.). A Judge of this Court granted defendant leave to appeal (19 N.Y.3d 977), and we now affirm.
People v Diaz
On the night of October 11, 2006, defendant Diaz, who was a legal permanent resident of the United States originally from the Dominican Republic, was allegedly riding in the back of a taxicab with co-defendant Castillo Morales. Police officers stopped the cab and, after searching the back seat, recovered a bag containing a two-pound brick of cocaine. The officers arrested defendant and Morales, and thereafter, both men were indicted on one count of Criminal Possession of a Controlled Substance in the First Degree (see Penal Law § 220.21 ) and one count of Criminal Possession of a Controlled Substance in the Third Degree (see Penal Law § 220.16 ).
At a court appearance held for consideration of the People's bail application, defense counsel opposed setting bail, noting that defendant was not a flight risk because he had a green card. Later, immediately prior to the scheduled start of a suppression hearing, defendant agreed to accept the People's plea offer of a two-and-one-half-year determinate prison term plus two years of postrelease supervision in exchange for his plea of guilty to third-degree drug possession. After conducting a standard plea allocution, the court said, "And if you're not here legally or if you have any immigration issues these felony pleas could adversely affect you, " adding, "Do you each understand that?" Defendant replied, "Yes." At sentencing, the court imposed the negotiated sentence. At no point did the court state that defendant could be deported based on his conviction of a removable controlled substances offense (see 8 USC § 1227 [a]  [B] [i]).
Defendant completed his prison term, and upon his release to postrelease supervision, United States Immigration and Customs Enforcement (ICE) initiated proceedings to remove him from the country based on his drug conviction. ICE initially detained defendant pending the outcome of those proceedings. However, defendant appealed his conviction and challenged the validity of his guilty plea, alleging that the court's failure to warn him of the possibility of deportation rendered his plea involuntary. As a result, ICE conditionally released defendant pending the resolution of his appeal, and he completed his term of postrelease supervision. While his appeal was pending, defendant also moved, pursuant to CPL 440.10, to vacate his conviction on the ground that his attorney had been ineffective for failing to advise him of the immigration consequences of his guilty plea. After a hearing, Supreme Court denied that motion, and the Appellate Division subsequently denied defendant permission to appeal from the hearing court's decision.
On defendant's direct appeal, the Appellate Division affirmed his conviction (92 A.D.3d 413, 413-414 [1st Dept 2012]). The court found that defendant had failed to preserve his challenge to the validity of his guilty plea (id. at 413). As an alternative holding, the court rejected defendant's claim on the merits (id. at 413). The court determined that, "[w]hile the duty to advise a defendant of the possibility of deportation before accepting a plea of guilty is imposed on the trial courts by statute (CPL 220.50 ), the court's 'failure to do so does not affect the voluntariness of a guilty plea'" (id. at 413-414, quoting Ford, 86 N.Y.2d at 404 n). The court further held that "the duties of a trial court upon accepting a guilty plea are not expanded by Padilla v Kentucky (559 U.S. 356 ), which deals exclusively with the duty of defense counsel to advise a defendant of the consequences of pleading guilty when it is clear that deportation is mandated" (id. at 414). Finally, in the court's estimation, the trial court's warning about immigration matters "sufficed to apprise defendant that the consequences of his guilty plea extended to his immigration status" (id.). A Judge of this Court granted defendant leave to appeal (19 N.Y.3d 972), and we now conditionally modify the Appellate Division's decision and remit the matter to Supreme Court to afford defendant the opportunity to move to vacate his plea.
People v Thomas
On February 15, 1992, defendant Thomas, a legal permanent resident of the United States originally from Jamaica, was arrested for selling cocaine to two individuals. He was later charged in a superior court information with two counts of Criminal Sale of a Controlled Substance in the Third Degree (see Penal Law § 220.39  ).
On February 20, 1992, defendant appeared with counsel in Supreme Court, waived indictment and pleaded guilty to one count of Attempted Criminal Sale of a Controlled Substance in the Third Degree. In exchange for defendant's plea, the court promised to sentence him to 30 days in jail plus five years of probation. However, the court conditioned defendant's receipt of that sentence upon his return to court for sentencing, abstinence from committing further crimes and cooperation with the Department of Probation. At the plea proceeding, the court asked defendant whether he was a citizen of the United States. Defendant answered that he was not a United States citizen and was from Jamaica.
While defendant was at liberty pending sentencing, he failed to show up for a scheduled court appearance, and the court issued a bench warrant for his arrest. On April 28, 1992, defendant's attorney appeared in court and gave the trial judge a copy of defendant's death certificate, which indicated that defendant had committed suicide. The court vacated the bench warrant as abated by death.
About 16 years later, on February 28, 2008, defendant arrived at JFK International Airport and, using an alias, asked customs officials for admission to the United States as a returning lawful permanent resident. A few days later, the United States Department of Homeland Security ran defendant's fingerprints and discovered his true identity. The Department of Homeland Security notified the People of defendant's return to the country, and the People then informed the court of this turn of events. The court restored the case to its calendar and issued a bench warrant for defendant's arrest.
Two days after the issuance of a public notice of the murder of the lawyer who had represented defendant at the time of his plea, defendant moved to withdraw his guilty plea with the assistance of a new attorney. Defendant asserted that the court's failure to warn him that he might be deported as a result of his plea rendered his plea involuntary. Defendant also contended that his previous lawyer had been ineffective for failing to provide advice on the immigration consequences of his plea. In support of the motion, defense counsel submitted an affirmation stating that defendant's previous attorney had not advised defendant at all concerning the possibility of deportation. By contrast, defendant himself averred that his attorney had specifically promised him he would not be subject to deportation if he pleaded guilty.
The trial court denied defendant's plea withdrawal motion. The court found that defendant's allegations regarding his attorney's advice were contradictory and incredible, and that defendant generally lacked credibility because he had absconded and faked his own death. Thus, the court opined, defendant had not credibly established that his attorney's advice had been deficient at the time of his plea or that he had been prejudiced by his attorney's allegedly poor performance. Citing Ford, the court concluded that defendant was not entitled to withdraw his plea based on the court's or counsel's failure to apprise him of potential deportation. The court then sentenced defendant to an indeterminate prison term of from two to six years.
Defendant appealed, renewing his complaints about counsel's advice and the voluntariness of his guilty plea. While defendant's appeal was pending, the Department of Homeland Security charged him with being subject to removal from the United States based on his conviction in this case. Upon learning of defendant's appeal, the federal agency amended the charges to seek defendant's removal based on his failure to disclose his conviction when he applied for an immigrant visa. Defendant was paroled to ICE custody, and an immigration judge later ordered his removal from the country.
Thereafter, the Appellate Division affirmed defendant's conviction (89 A.D.3d 964, 964-965 [2d Dept 2011]). The court concluded that defendant's ineffective assistance claim was unpreserved and premised on incredible allegations regarding matters outside the record (see id. at 964-965). Finding Ford to be controlling, the court also held that defendant was not entitled to withdraw his guilty plea due to the trial court's failure to mention potential deportation at the plea proceeding (see 89 A.D.3d at 965). A Judge of this Court granted defendant leave to appeal (19 N.Y.3d 968), and we now affirm.
Each defendant maintains that his guilty plea must be vacated because the trial court did not inform him that his plea would subject him to deportation, thereby failing to provide constitutionally mandated notice of a critically important consequence of the plea. However, before we may reach defendants' claims, we must determine whether those claims have been preserved as a matter of law for our review (see NY Const, art VI, § 3 [a]; CPL 470.05 ; People v Hawkins, 11 N.Y.3d 484, 491-492 ).
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 (see CPL 220.60 ; 440.10; People v Clarke, 93 N.Y.2d 904, 906 ; People v Toxey, 86 N.Y.2d 725, 726 ; People v Lopez, 71 N.Y.2d 662, 665 ). Under certain circumstances, this preservation requirement extends to challenges to the voluntariness of a guilty plea (see People v Murray, 15 N.Y.3d 725, 726 ; Toxey, 86 N.Y.2d at 726).
However, under People v Lopez, where a deficiency in the plea allocution is so clear from the record that the court's attention should have been instantly drawn to the problem, the defendant does not have to preserve a claim that the plea was involuntary because "the salutary purpose of the preservation rule is arguably not jeopardized" (71 N.Y.2d at 665-666). And, in People v Louree (8 N.Y.3d 541 ) we concluded that a defendant need not move to withdraw a guilty plea in order to obtain appellate review of a claim that the trial court's failure to inform the defendant of the postrelease supervision component of the defendant's sentence rendered the plea involuntary (see id. at 545-547). We carved out that exception to the preservation doctrine because of the "actual or practical unavailability of either a motion to withdraw the plea" or a "motion to vacate the judgment of conviction, " reasoning that "a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge" (id. at 546). Taken together, Lopez and Louree establish 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. At the same time, there are significant constraints on this exception to the preservation doctrine. Recognizing as much, in People v Murray, we held that the defendant had to preserve his claim that the trial court's imposition of a non-conforming term of postrelease supervision rendered his guilty plea involuntary because the court had mentioned the non-conforming postrelease supervision term at sentencing, thereby providing the defendant with an opportunity to challenge the voluntariness of his plea (see Murray, 15 N.Y.3d at 726-727).
Here, in Diaz, the trial court never alerted defendant that he could be deported as a result of his guilty plea. In fact, the court provided defendant with inaccurate advice, as the court implied that defendant's plea would entail adverse immigration consequences only for someone who was in the country illegally or had existing immigration issues — circumstances which did not apply to defendant. Since defendant did not know about the possibility of deportation during the plea and sentencing proceedings, he had no opportunity to withdraw his plea based on the court's failure to apprise him of potential deportation. Thus, defendant's claim falls within Lopez 's and Louree 's narrow exception to the preservation doctrine.
By contrast, in Peque, because defendant knew of his potential deportation, and thus had the ability to tell the court, if he chose, that he would not have pleaded guilty if he had known about deportation, he was required to preserve his claim regarding the involuntariness of his plea . At sentencing, defendant plainly knew that he might be deported as a result of his guilty plea, and he even implored the court "to have mercy and allow [him] to be deported to [his] country within five years." Given his awareness of the deportation issue at that point, defendant could have sought to withdraw his plea on that ground. The salutary purpose of the preservation doctrine, including the development of a full record and the efficient resolution of claims at the earliest opportunity, is served by requiring preservation in his case. In light of defendant's failure to raise the deportation issue below or move to withdraw his plea, we cannot entertain his newly minted challenge to its validity.
In Thomas, defendant fully preserved his claim that the trial court should have informed him that he could be deported as a result of his guilty plea, and therefore defendant's ...