New York Law Review

Tag: deportation

  • People v. Peque, 22 N.Y.3d 168 (2013): Duty to Advise on Deportation Consequences

    People v. Peque, 22 N.Y.3d 168 (2013)

    Due process requires a trial court to inform a defendant, prior to accepting a guilty plea to a felony, that if the defendant is not a U.S. citizen, they may be deported as a consequence of the plea.

    Summary

    The New York Court of Appeals addressed whether a trial court must inform a defendant that a guilty plea to a felony could result in deportation if the defendant is not a U.S. citizen. The court held that due process compels such advisement because deportation is a plea consequence of tremendous importance. However, the court also ruled that a defendant seeking to withdraw a plea based on the lack of such advice must show a reasonable probability that they would have rejected the plea and gone to trial had they been properly warned. The court overruled part of People v. Ford, holding that failure to advise a defendant of potential deportation can affect the validity of a plea, but reaffirmed the distinction between direct and collateral consequences.

    Facts

    Peque, a Guatemalan national, was arrested for rape. At arraignment, it was noted he lacked a Social Security number. He pleaded guilty to first-degree rape, but the court did not advise him that this conviction could lead to deportation. At sentencing, defense counsel mentioned Peque was subject to deportation and wished the sentence to stand. Diaz, a legal permanent resident from the Dominican Republic, was arrested for drug possession. The court warned him that felony pleas could adversely affect immigration status, but did not specifically mention deportation. Thomas, a legal permanent resident from Jamaica, pleaded guilty to attempted criminal sale of a controlled substance in 1992. The court knew he wasn’t a citizen, but didn’t warn about deportation. He absconded, faked his death, and later returned to the US, seeking admission as a returning resident.

    Procedural History

    Peque: The Appellate Division affirmed Peque’s conviction, citing Ford that failure to advise on deportation doesn’t invalidate a plea. The Court of Appeals affirmed. Diaz: The Appellate Division affirmed Diaz’s conviction, finding his challenge unpreserved and citing Ford. The Court of Appeals conditionally modified and remitted. Thomas: The Appellate Division affirmed Thomas’s conviction. The Court of Appeals affirmed.

    Issue(s)

    1. Whether due process requires a trial court to advise a defendant that a guilty plea may result in deportation if the defendant is not a U.S. citizen?

    2. Whether, if such advisement is required and not given, the defendant is entitled to automatic withdrawal or vacatur of the plea?

    Holding

    1. Yes, because 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.

    2. No, because the defendant must establish a reasonable probability that they would have rejected the plea and opted for trial had the court warned of the possibility of deportation.

    Court’s Reasoning

    The Court reasoned that due process requires a knowing, intelligent, and voluntary plea. While courts need not advise on every possible repercussion, they must advise on direct consequences. Ford classified deportation as a collateral consequence. However, changes in immigration law since Ford have made deportation a near-automatic result for many noncitizen offenders. Quoting Padilla v. Kentucky, the Court noted that “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” The Court overruled the portion of Ford stating that a court’s failure to warn about potential deportation never affects a plea’s validity. However, the Court also held that to withdraw a plea, a defendant must show a reasonable probability that they would not have pleaded guilty had they been informed of potential deportation. Factors to consider include the plea’s favorability, potential consequences after trial, strength of the prosecution’s case, defendant’s ties to the U.S., and counsel’s advice. The Court emphasized that trial courts aren’t required to engage in any particular litany during an allocution in order to obtain a valid guilty plea. The defendant in Diaz was entitled to a remittal to Supreme Court to allow him to move to vacate his plea and develop a record relevant to the issue of prejudice. Thomas was not entitled to relief because deportation was less certain at the time of his plea.

  • People v. Ventura, 17 N.Y.3d 675 (2011): Right to Appeal for Involuntarily Deported Defendants

    17 N.Y.3d 675 (2011)

    An involuntarily deported defendant retains the right to have their direct criminal appeal heard by an intermediate appellate court, and it is an abuse of discretion for the appellate court to dismiss the appeal solely based on the defendant’s deportation.

    Summary

    Carlos Ventura and Damian Gardner were convicted of crimes and filed appeals. While their appeals were pending, both were involuntarily deported by federal immigration authorities. The New York Court of Appeals addressed whether the Appellate Division abused its discretion by dismissing their appeals because the defendants were no longer present in the country. The Court of Appeals held that it was an abuse of discretion, emphasizing the importance of intermediate appellate review and the lack of voluntary evasion of justice by the defendants.

    Facts

    Carlos Ventura was convicted of criminal possession of stolen property and other offenses. He filed a timely notice of appeal. Ventura, a legal permanent resident from the Dominican Republic, was paroled to ICE and deported before his appeal was heard. The Appellate Division granted the People’s motion to dismiss the appeal.

    Damian Gardner was convicted of criminal possession of a controlled substance and filed a timely notice of appeal. Gardner was deported to Jamaica before his appeal was decided. The People’s motion to dismiss Gardner’s appeal was also granted by the Appellate Division.

    Procedural History

    Both Ventura and Gardner were convicted in trial courts. They both filed appeals to the Appellate Division. In both cases, the Appellate Division granted the prosecution’s motion to dismiss the appeals due to the defendants’ deportation. The New York Court of Appeals granted leave to appeal in both cases to review the dismissals.

    Issue(s)

    Whether the Appellate Division abused its discretion by dismissing the direct criminal appeals of defendants who were involuntarily deported while their appeals were pending.

    Holding

    Yes, because criminal defendants have a fundamental right to intermediate appellate review, and dismissing an appeal solely due to involuntary deportation undermines this right, especially when the defendant’s absence is not a voluntary evasion of justice.

    Court’s Reasoning

    The Court of Appeals reasoned that CPL 450.10 provides a criminal defendant a right to appeal to an intermediate appellate court. Dismissal of appeals based on the defendant’s inability to obey the mandate of the court is usually reserved for cases where the defendant voluntarily absconds, thereby evading justice. In this case, the defendants’ deportations were involuntary, distinguishing them from cases where appeals are dismissed due to a defendant’s deliberate evasion. The Court emphasized the importance of intermediate appellate review in New York, highlighting the Appellate Division’s unique fact-finding powers and ability to review unpreserved issues. The court noted that while CPL 470.60(1) grants appellate courts discretion to dismiss appeals, this discretion cannot override a defendant’s fundamental right to appellate review. The Court also noted that the defendants continued to prosecute their appeals through counsel. The Court distinguished prior cases, such as People v. Del Rio, because those cases involved appeals dismissed by the Court of Appeals after intermediate appellate review had already occurred. Judge Read dissented, arguing that the Appellate Division has discretion to dismiss appeals, and that the majority’s rule strips the court of this discretion when the defendant is an involuntarily deported noncitizen. The dissent argued that unless the conviction caused the deportation or prevents reentry, the Appellate Division should have the discretion to dismiss the appeal.

  • People v. Marcos, 37 N.Y.3d 831 (2021): Appeal Dismissed Due to Deportation

    People v. Marcos, 37 N.Y.3d 831 (2021)

    An appeal may be dismissed when a defendant is unavailable to obey the mandate of the court, even if the unavailability is due to involuntary deportation, but such dismissal should be without prejudice to reinstatement of the appeal upon the defendant’s return to the court’s jurisdiction.

    Summary

    The New York Court of Appeals dismissed the defendant’s appeal without prejudice because he had been involuntarily deported and was therefore unavailable to comply with any potential court mandate. While deportation did not automatically require dismissal, the court found the situation analogous to mootness. Exercising its discretion, the Court dismissed the appeal, allowing the defendant to seek reinstatement if he returned to the court’s jurisdiction, ensuring the appeal could be properly adjudicated if the defendant became subject to the court’s power again.

    Facts

    The defendant was convicted of a crime and appealed the conviction. While the appeal was pending, the defendant was involuntarily deported from the United States.

    Procedural History

    The case reached the New York Court of Appeals after the defendant’s conviction and subsequent deportation. The Court of Appeals considered whether it could properly adjudicate the appeal given the defendant’s absence from the jurisdiction.

    Issue(s)

    Whether the appeal of a defendant who has been involuntarily deported should be dismissed because the defendant is unavailable to obey the mandate of the court.

    Holding

    Yes, because although involuntary deportation does not mandate dismissal, it creates a situation analogous to mootness, and the court has discretion to dismiss the appeal without prejudice to reinstatement upon the defendant’s return to the court’s jurisdiction.

    Court’s Reasoning

    The Court relied on the principle that criminal proceedings require the defendant to be under the court’s control, as stated in People v. Genet, 59 N.Y. 80, 81 (1874), stating that “[t]he whole theory of criminal proceedings is based upon the idea of the defendant being in the power, and under the control of the court, in his person.” Citing precedent where appeals were dismissed when a defendant absconded (People v. Smith, 44 N.Y.2d 613 (1978); People v. Parmaklidis, 38 N.Y.2d 1005 (1976)) or voluntarily left the jurisdiction (People v. Del Rio, 14 N.Y.2d 165 (1964)), the Court found that while involuntary deportation was different, the defendant’s unavailability to obey the court’s mandate presented a similar issue of mootness. The court emphasized it was exercising its discretion and dismissed the appeal without prejudice, ensuring that the defendant could seek reinstatement if he returned to the Court’s jurisdiction, aligning with the precedent set in People v. Sullivan, 28 N.Y.2d 900, 901 (1971) and People v. Sullivan, 28 N.Y.2d 992 (1971), where appeals were dismissed when the appellant was “not presently available to obey the mandate of the court in the event of an affirmance,” but reinstated upon the defendant’s return to custody. The court reasoned that this approach balanced the defendant’s right to appeal with the court’s need to have effective control over the parties before it.

  • People v. Ford, 86 N.Y.2d 407 (1995): No Duty to Warn of Deportation Consequences

    86 N.Y.2d 407 (1995)

    A trial court and defense counsel have no duty to warn a defendant of potential deportation consequences before accepting a guilty plea, as deportation is a collateral, not a direct, consequence of a conviction.

    Summary

    Ford, a legal alien from Jamaica, pleaded guilty to manslaughter. After serving his sentence, deportation proceedings began based on his conviction. Ford moved to vacate his plea, arguing he wasn’t warned about deportation. The New York Court of Appeals held that neither the court nor counsel had a duty to warn him about deportation, as it’s a collateral consequence outside the court’s control. The court reasoned that meaningful representation was provided because Ford received an advantageous plea deal, limiting his sentence compared to the potential maximum. The order of the Appellate Division was affirmed.

    Facts

    Rudolph Ford, a 19-year-old legal alien from Jamaica, accidentally shot and killed his girlfriend while showing her a gun he believed was unloaded.

    Ford was indicted on charges of manslaughter and criminal possession of a weapon.

    With the advice of counsel, Ford pleaded guilty to manslaughter in the second degree.

    He was sentenced to two to six years in prison and subsequently paroled.

    Following his release, the Immigration and Nationalization Service (INS) initiated deportation proceedings against him based on his conviction.

    Procedural History

    Ford moved to change his manslaughter judgment to criminally negligent homicide, arguing the facts didn’t suggest moral turpitude and he should have been warned about deportation.

    The Supreme Court granted the motion, vacating the plea and ordering a new trial.

    The Appellate Division reversed, construing the motion as a CPL 440.10 motion to vacate the plea, holding the court wasn’t obligated to warn about deportation and counsel’s failure to advise didn’t constitute ineffective assistance.

    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether a trial court has a duty to warn a defendant of the potential deportation consequences of a guilty plea.

    2. Whether the failure of defense counsel to warn a defendant of the possibility of deportation constitutes ineffective assistance of counsel.

    Holding

    1. No, because deportation is a collateral consequence of a conviction, not a direct one, and is not within the control of the court system.

    2. No, because the defendant received meaningful representation when counsel secured an advantageous plea bargain, limiting his sentence exposure.

    Court’s Reasoning

    The court distinguished between direct and collateral consequences of a guilty plea. Direct consequences have an immediate and automatic effect on the defendant’s punishment. Collateral consequences, like loss of the right to vote or travel abroad, are peculiar to the individual and result from actions taken by agencies outside the court’s control. The court stated, “[a] direct consequence is one which has a definite, immediate and largely automatic effect on defendant’s punishment.”

    Deportation is a collateral consequence because it depends on the defendant’s immigration status and the actions of the INS, not directly on the court’s sentence. Because the court is not in a position to advise on all ramifications of a guilty plea personal to a defendant, there is no requirement to advise on collateral consequences.

    Regarding ineffective assistance of counsel, the court applied the “meaningful representation” standard under the New York Constitution. This standard is met when the attorney provides meaningful representation, not perfect representation, considering the totality of the circumstances. The Court cited People v. Baldi, 54 N.Y.2d 137, 147, stating that “So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met”.

    Here, Ford received an advantageous plea, reducing his potential sentence from a possible 30 years (due to consecutive sentences for manslaughter and weapon possession) to two to six years. He did not allege any affirmative misstatements from his attorney about the risk of deportation or that any advice, if given, induced him to plead guilty. The court also noted that even under the federal standard established in Strickland v. Washington, 466 U.S. 668, the defendant failed to show deficient performance by counsel and prejudice. The court emphasized that “the failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel”.

  • People v. Del Rio, 16 N.Y.2d 163 (1965): Effect of Deportation and Parole Agreement on Appeal Rights

    People v. Del Rio, 16 N.Y.2d 163 (1965)

    A defendant who accepts a commutation of sentence and parole, conditioned on remaining outside the jurisdiction, forfeits the right to appeal the underlying conviction.

    Summary

    Del Rio was convicted of murder. While his appeal was pending, he accepted a commutation of his sentence and parole, conditioned on his deportation to Cuba and agreement never to return to the United States. The New York Court of Appeals held that by accepting these terms, Del Rio abandoned his right to appeal. The court reasoned that because Del Rio was no longer within the jurisdiction and had agreed to remain outside it, his appeal would be futile, as he would not be available for a new trial if one were ordered. This decision underscores the principle that a defendant cannot simultaneously seek to overturn a conviction while accepting the benefits of a conditional release that requires their absence from the jurisdiction.

    Facts

    Francisco Molina del Rio was convicted of second-degree murder and sentenced to 20 years to life in prison.

    While his appeal to the New York Court of Appeals was pending, the U.S. Department of Justice sought his release to secure the release of American citizens imprisoned in Cuba.

    The Governor of New York commuted Del Rio’s sentence, contingent on his voluntary acceptance of the terms, which included deportation to Cuba and a promise never to return to the United States.

    Del Rio signed a parole release agreement, accepting these conditions, and was deported to Cuba.

    Despite being in Cuba, Del Rio later requested that his appeal be pursued.

    Procedural History

    The trial court convicted Del Rio of murder in the second degree.

    The Appellate Division affirmed the conviction.

    The New York Court of Appeals initially dismissed Del Rio’s appeal as moot after he was deported.

    The Court of Appeals vacated the dismissal based on mistaken information that Del Rio had not consented to the commutation and deportation.

    Upon learning that Del Rio had voluntarily accepted the commutation and deportation terms, the Court of Appeals reconsidered the appeal.

    Issue(s)

    Whether a defendant who accepts a commutation of sentence and parole, conditioned on remaining outside the jurisdiction, retains the right to appeal the underlying conviction.

    Holding

    No, because by accepting the commutation and parole with the condition that he remain outside the United States, Del Rio waived and abandoned his right to appeal.

    Court’s Reasoning

    The Court of Appeals relied on the principle established in People v. Genet, which held that court proceedings on behalf of a person charged with a felony cannot be taken unless the defendant is in actual or constructive custody.

    The court acknowledged differing views on whether an appeal should be dismissed or suspended when a defendant absconds, but noted a consensus that an absconding defendant-appellant may not have the appeal heard.

    The court reasoned that hearing the appeal would be futile because if a new trial were ordered, Del Rio would not be present to answer further.

    The court distinguished this case from Eighmy v. People, which held that acceptance of a pardon does not deprive a defendant of the right to appeal, because Del Rio’s case involved a condition of exile from the state, making his situation analogous to escaping or absconding.

    The court stated that Del Rio, “in consideration of the commutation of his long sentence and of his release from prison solemnly agreed that he would go at once to Cuba and never again enter the United States. He has ever since been in Cuba and from Cuba he has written his lawyer that he desires the appeal to be pressed. The difficulty with the latter request is that, in reason and on the precedents, he must be held to have abandoned the appeal and deliberately to have waived and foregone his right to have the appeal heard and decided.”