Courts Must Warn of Plea Deportation Result

, New York Law Journal

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Justice Abdus-Salaam
Justice Abdus-Salaam

ALBANY - Trial judges must caution non-citizen defendants that they may be deported before allowing them to plead guilty to a felony, the state's highest court has ruled for the first time.

The 5-2 majority on the Court of Appeals said its ruling Tuesday recognizes the "uniquely devastating deprivation of liberty" involved when a person faces deportation from the United States and the obligation of the courts to ensure that immigrants are aware of what is at stake should they be convicted.

A non-citizen defendant can hardly be said to have made a "voluntary and intelligent choice among the alternative courses of action open to the defendant" unless he or she is informed by the court that deportation looms as a possible ramification of a guilty plea, Justice Sheila Abdus-Salaam (See Profile) wrote for the majority.

"The trial court must provide a short, straightforward statement on the record notifying the defendant that, in sum and substance, if the defendant is not a United States citizen, he or she may be deported upon a guilty plea," Abdus-Salaam wrote.

The court acknowledged that it was taking the "extraordinary" step of overturning in part the Court of Appeals' precedent that has long guided New York courts in this area, People v. Ford, 86 NY2d 397 (1995). Ford held that deportation is a collateral consequence of conviction and that the court's failure to inform the defendant of that consequence never impacts the voluntariness of the plea.

The court accepted the arguments of the defendants in three cases and decided that, with approximately 188,000 people deported from the United States each year following criminal convictions, deportation has become an "automatic consequence of a guilty plea for most non-citizen defendants."

"Ford's discussion of deportation was rooted in a legal and practical landscape that no longer exists, and the realities of the present-day immigration system have robbed it of much of its logical and experiential foundation," wrote Abdus-Salaam.

As for the proper remedy, she said defendants who have not received proper notification about the ramifications of their guilty pleas should be allowed to go back to court and show there was a "reasonable probability" that they would not have pleaded guilty but would have gone to trial had they had been told that deportation awaited them under a guilty plea.

When weighing the question of prejudice, courts should consider "the potential consequences the defendant might face upon a conviction after trial, the strength of the People's case against the defendant, the defendant's ties to the United States" and other factors, Abdus-Salaam said.

Chief Judge Jonathan Lippman (See Profile) and Judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile) and Jenny Rivera (See Profile) were in the majority that found courts have a due-process obligation to non-citizen defendants considering guilty pleas.

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