People v. Peque

• Citation: 22 N.Y.3d 168,2013 N.Y. Slip Op. 07651,980 N.Y.S.2d 280,3 N.E.3d 617
• Parties: The PEOPLE of the State of New York, Respondent, v. Juan Jose PEQUE, Also Known as Juan Jose Peque Sicajan, Appellant. The People of the State of New York, Respondent, v. Richard Diaz, Appellant. The People of the State of New York, Respondent, v. Michael Thomas, Also Known as Neil Adams, Appellant.
• Decision Date: 19 November 2013
• Court: New York Court of Appeals

22 N.Y.3d 168
3 N.E.3d 617
980 N.Y.S.2d 280
2013 N.Y. Slip Op. 07651

The PEOPLE of the State of New York, Respondent,
v.
Juan Jose PEQUE, Also Known as Juan Jose Peque Sicajan, Appellant.
The People of the State of New York, Respondent,
v.
Richard Diaz, Appellant.
The People of the State of New York, Respondent,
v.
Michael Thomas, Also Known as Neil Adams, Appellant.

Court of Appeals of New York.

Nov. 19, 2013.

Melissa A. Latino, Albany, for appellant in the first above-entitled action.

Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent in the first above-entitled action.

Richard M. Greenberg, Office of the Appellate Defender, New York City (Rosemary Herbert of counsel), for appellant in the second above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Vincent Rivellese and Hilary Hassler of counsel), for respondent in the second above-entitled action.

Lynn W.L. Fahey, Appellate Advocates, New York City, for appellant in the third above-entitled action.

Richard A. Brown, District Attorney, Kew Gardens (Jennifer Hagan, Robert J. Masters and John M. Castellano of counsel), for respondent in the third above-entitled action.

Kramer Levin Naftalis & Frankel LLP, New York City (Craig L. Siegel, Carl D. Duffield, Ashley S. Miller and Anna K. Ostrom of counsel), and Dawn Seibert for Immigrant Defense Project, amicus curiae in the first, second and third above-entitled actions.

OPINION OF THE COURT
ABDUS–SALAAM, J.

[3 N.E.3d 621]

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.¹ In reaching this conclusion,

[3 N.E.3d 622]

we overrule the limited portion of our decision in People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265 (1995) 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 noncitizen 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 n. 1, supra ).²

I

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 ( seePenal Law § 130.35[1] ). 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 17 1/2—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,”

[3 N.E.3d 623]

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 ( see8 U.S.C. §§ 1101[a][43][A]; 1227[a][2] ).

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, 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, 930 N.Y.S.2d 492 [3d Dept.2011] ). Relying on Ford, 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, 930 N.Y.S.2d 492). 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, 950 N.Y.S.2d 360, 973 N.E.2d 770 [2012] ), 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 codefendant 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 ( seePenal Law § 220.21[1] ) and one count of criminal possession of a controlled substance in the third degree ( seePenal Law § 220.16[1] ).

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 2 1/2-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

[3 N.E.3d 624]

point did the court state that defendant could be deported based on his conviction of a removable controlled substances offense ( see8 U.S.C. § 1227[a][2][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...