People v. Pastor , 25 N.Y.S.3d 160 ( 2016 )

Manzanet-Daniels, J.,

dissents in part in a memorandum as follows: On September 20, 2011, defendant appeared before the court with a Spanish interpreter. Defendant pleaded guilty to assault in the second degree, the sole original charge against him, in exchange for a term of nine months.

During the allocution, the court informed defendant that “if you are not a citizen, you may face deportation or denial of your naturalization given this plea today; is that understood?” After a pause, defendant replied, ‘Yes.” Counsel added that he had fully discussed the consequences of the plea with his client, although “it is not relevant to this case.” On October 5, 2011, the court sentenced defendant in accordance with the plea agreement. The court noted that it had read the presentence report, but did not refer to its contents. The report indicated that defendant had been born in Mexico on April 3, 1970, and had been in the country illegally since 2001. Defendant and his wife had five children born in the United States.

Defendant’s plea was not knowingly and voluntarily made because he was misadvised about the immigration consequences flowing from his plea. In People v Peque (22 NY3d 168 [2013], cert denied sub nom. Thomas v New York, 574 US —, 135 S Ct 90 [2014]), the Court of Appeals held that before accepting a plea, due process requires that a court “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” (id. at 176). The Court reasoned that “fundamental fairness . . . requires a trial court to make a noncitizen defendant aware of the risk of deportation because deportation frequently results from a noncitizen’s guilty plea and constitutes a uniquely devastating deprivation of liberty” (id. at 193). Accordingly, “a noncitizen defendant convicted of a removable crime can hardly make ‘a voluntary and intelligent choice among the alternative courses of action’ ” unless informed of the possibility of deportation (id. at 192).

The court’s initial advice to defendant — i.e., that if he were a noncitizen there might be immigration consequences — was immediately negated by counsel, who noted that he had discussed the consequences of the plea with his client and stated — incorrectly — that those consequences were “not relevant to this case.” The court did nothing to rectify the misstatement, essentially endorsing it. This case is in all relevant respects similar to a recent one in which we found that the court’s failure to clarify defense counsel’s statement that “[immigration consequences are] not applicable in this case,” amounted to a Peque violation (People v Belliard, 135 AD3d 437, 437 [2016]). In Belliard, the court’s failure to countermand defense counsel’s erroneous statements that “immigration consequences” were “not applicable in this case,” left the defendant with a mistaken view regarding the immigration consequences of his plea; so too, here, counsel’s statement that immigration consequences were “not relevant to this case” had the effect of undermining the court’s initial advice to defendant.

Defendant should be afforded the opportunity to move to vacate his plea upon a showing 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” (Peque, 22 NY3d at 176). After 10 years in the United States, with five minor citizen children reliant on him for support, defendant was potentially eligible to become a lawful permanent resident {see 8 USC § 1229b [b] [1] [cancellation of removal and adjustment of status for certain nonpermanent residents]). Such relief is not available to one convicted of a “crime involving moral turpitude” such as the one to which defendant pleaded guilty (8 USC § 1182 [a] [2] [A] [I]). I would accordingly hold the appeal in abeyance pending remand for a prejudice hearing. Defendant has not expressly requested a hearing, believing the prejudice to him to be patent from the record; however, a majority of the Peque court decreed that a hearing, and not automatic vacatur of the plea, is the proper remedy for the violation.